Report on the Draft Justice (NI) Bill and the Criminal Justice Review - Implementation Plan

AD HOC COMMITTEE

REPORT ON THE DRAFT JUSTICE (NI) BILL AND THE CRIMINAL JUSTICE REVIEW - IMPLEMENTATION PLAN

REPORT AND PROCEEDINGS OF THE COMMITTEE

Ordered by the Ad hoc Committee to be printed on 8 January 2002

PUBLISHED BY AUTHORITY OF THE NORTHERN IRELAND ASSEMBLY
BELFAST: THE STATIONERY OFFICE
£XX.XX

AD HOC COMMITTEE

The Committee was established, in accordance with Assembly Standing Order 49, by resolution of the Assembly on 19 November 2001 and amended on 3 December 2001. The function of the Committee was to consider the draft Justice (NI) Bill and the Criminal Justice Review Implementation Plan and to report thereon to the Assembly by 14 January 2002.

The Committee had ten members, including a Chairperson and Deputy Chairperson; its quorum was five. The membership of the Committee was as follows-

Mr Duncan Shipley Dalton, Chairperson;
Mrs Eileen Bell, Deputy Chairperson;
Mr Alex Attwood;
Mr Gregory Campbell;
Mr David Ervine;
Sir John Gorman;
Mr Alban Maginness;
Mr Mitchel McLaughlin;
Mrs Mary Nelis; and
Mr Ian Paisley Jnr.

As was agreed by the Committee, other members of the Assembly could act as deputies for those members of the Committee who were unable to attend proceedings of the Committee. The following is a list of members who participated on the Committee on that basis-

Dr Esmond Birnie;
Mr John Kelly;
Mr Mick Murphy;
Mrs Patricia Lewsley;
Mr Pat McNamee; and
Mr Mark Robinson.

The report and proceedings of the Committee have been published by the Stationery Office by order of the Committee. All publications of the Committee have been posted at http://www.ni-assembly.gov.uk/ the website of the Northern Ireland Assembly.

All correspondence should be addressed to the Clerk of Ad hoc Committees at Room 371 Parliament Buildings, Stormont, Belfast BT4 3XX.

Table of contents

Background to the Report

Introduction
Remit of the Committee
Proceedings of the Committee
Acknowledgements

Report of the Criminal Justice Review Group and the draft Justice (NI) Bill

Report of the Criminal Justice Review Group
Draft Justice (Northern Ireland) Bill

Committee's consideration of the proposed legislation and implementation plan

General Comments
Structural Reform
Openness and Transparency
New Approaches
Conclusions

Appendices

Appendix 1 - Minutes of Proceedings
Appendix 2 - List of Witnesses
Appendix 3 - Minutes of Evidence
Appendix 4 - Written submissions from the Parties
Appendix 5 - Written Submissions

BACKGROUND TO THE REPORT

INTRODUCTION

This is a Report made by the Ad hoc Committee to the Assembly, pursuant to the resolutions of the Assembly on Monday 19 November and 3 December 2001. The Report describes the work of the Committee over the period 26 November 2001 to 8 January 2002.
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REMIT OF THE COMMITTEE
As agreed by the Assembly, the Committee was established to consider: -

the draft Justice (Northern Ireland) Bill; and
the Criminal Justice Review Implementation Plan,

and to report thereon to the Assembly.

Copies of the relevant papers are available from NIO online (http://www.nio.gov.uk/), the website of the Northern Ireland Office.
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PROCEEDINGS OF THE COMMITTEE
During the period covered by this Report, the Committee held 7 meetings: 26, 27 and 29 November; 4, 11 and 13 December 2001; and 8 January 2002. The Minutes of Proceedings for these meetings are included at Appendix 1.
In the course of its proceedings, the Committee heard evidence from the following bodies: -

The Committee on the Administration of Justice;
The Criminal Bar Association;
The Law Society of Northern Ireland;
The Northern Ireland Court Service;
The Northern Ireland Human Rights Commission;
The Northern Ireland Office; and
The Probation Board for Northern Ireland.

A complete list of those who gave evidence to the Committee is included at Appendix 2.

At the Committee's first meeting on 26 November 2001, the Committee elected Mr Duncan Shipley Dalton, Chairperson and Mrs Eileen Bell, Deputy Chairperson. The Committee also considered its options for its consideration of the draft Justice (NI) Bill and the Criminal Justice Review Implementation Plan. The Committee unanimously agreed that the deadline, by which the Committee was to report to the Assembly, was unworkable. It was agreed that the Chairperson should table a motion in the Assembly to extend that period. The meeting was held in private session.
On 27 November 2001, a researcher from the Assembly's Research and Library Services gave the Committee a presentation on the background to the Government's proposals, detailing the history of the reform from the Belfast Agreement through to the Report of the Criminal Justice Review Group. The researcher also provided a focused examination of a number of themes in the Implementation Plan. The Committee also conducted its first reading of the draft legislation; the Assembly's legal advisor provided assistance. The meeting was held in private session.
At its meeting on 29 November 2001 the Committee held the first of its three evidence sessions (The Minutes of Evidence for the Committee's evidence sessions are included at Appendix 3). During this session the Committee heard evidence from the Northern Ireland Human Rights Commission (NIHRC) and the Law Society of Northern Ireland (LSNI). The NIHRC gave evidence on the human rights aspects of the proposals and LSNI provided evidence on the impact of the proposals on the legal profession. The meeting was held in public session.
On 3 December 2001, pursuant to a resolution of the Committee, the Chairperson moved a motion in the Assembly to extend the period by which the Committee must submit its report to the Assembly from 11 December 2001 to 14 January 2002. This motion was agreed.
At its meeting on 4 December 2001, the Committee held the second of its three evidence sessions. During this session the Committee heard evidence from the Northern Ireland Office (NIO) and the Northern Ireland Court Service; and the Committee on the Administration of Justice (CAJ). The meeting was held in public session.
At the Committee's meeting on 11 December 2001, the Committee held its final evidence session. During this session the Committee heard evidence from the Probation Board for Northern Ireland (PBNI) and the Criminal Bar Association. The meeting was held in public session.
The Committee also received written submissions from those political parties of the Assembly, represented on the Committee, setting out their respective positions in relation to the proposals. The texts of these are reproduced at Appendix 4. In addition, the Committee also received a number of submissions from witnesses and other interested bodies. These texts are reproduced at Appendix 5.
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Acknowledgements
The Committee would like to express its thanks to all the organisations which provided evidence; without the benefit of that evidence this report could not have been compiled. The Committee would also like to record its appreciation to Mr Percy Johnston, Legal Advisor to the Assembly, who provided the members of the Committee with a overview of the draft legislation. The Committee would also like to express special thanks to Mr Hugh Widdis, Assembly Research & Library Services, for his service to the Committee and his contribution to the proceedings.
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REPORT OF THE CRIMINAL JUSTICE REVIEW GROUP AND
THE DRAFT JUSTICE (NI) BILL

REPORT OF THE CRIMINAL JUSTICE REVIEW GROUP
The terms of reference for the Review of the Criminal Justice System (hereinafter referred to as the Review) were set out in the Belfast Agreement. The Agreement envisaged a wide-ranging review of criminal justice (other than policing and those elements of the system relating to the emergency legislation) with the aim of ensuring a system of criminal justice for Northern Ireland that: -

delivers a fair and impartial system of justice to the community;
is responsive to the community's concerns, and encourages community involvement where appropriate;
has the confidence of all parts of the community; and
delivers justice efficiently and effectively.

The Review took the form of a fundamental examination of the justice system in Northern Ireland. Its terms of reference were: -

Taking account of the aims of the criminal justice system as set out in the Agreement, the review will address the structure, management and resourcing of publicly funded elements of the criminal justice system and will bring forward proposals for future criminal justice arrangements (other than policing and those aspects of the system relating to emergency legislation, which the Government is considering separately) covering such issues as: -

the arrangements for making appointments to the judiciary and magistracy, and safeguards for protecting their independence;
the arrangements for the organisation and supervision of the prosecution process, and for safeguarding its independence;
measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system;
mechanisms for addressing law reform;
the scope for structured co-operation between the criminal justice agencies on both parts of the island; and
the structure and organisation of criminal justice functions that might be devolved to an Assembly, including the possibility of establishing a Department of Justice, while safeguarding the essential independence of many of the key functions in this area.

It studied the principles and values that should underpin the criminal justice system and offered new approaches to delivering services, for example in the areas of restorative justice and community safety. The Review Group undertook extensive research and brought together examples of international best practice and also made a number of suggestions for improving the quality of services provided to victims by both statutory and voluntary agencies.
The Review was published in March 2000, and was then subject to extensive consultation. Responses to the consultation were received from a wide range of groups and individuals, including the political parties, the criminal justice agencies, other organisations in the statutory, voluntary and community sectors, and the public.
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DRAFT JUSTICE (NORTHERN IRELAND) BILL
During its proceedings, the Committee had before it a copy of the draft Justice (NI) Bill and the accompanying explanatory notes. To inform debate, both within the Assembly and further afield, the Committee agreed that its report should detail the provisions of the draft Bill.
As set out in the draft Bill, its purpose is to: -
Amend the law of Northern Ireland relating to the judiciary, law officers and courts; to establish a Public Prosecution Service for Northern Ireland, a Chief Inspector of Criminal Justice in Northern Ireland and a Northern Ireland Law Commission; to amend the law of youth justice in Northern Ireland; to make provision for making available to victims of crime information about the release of offenders in Northern Ireland; to make provision about community safety in Northern Ireland; to amend the law of legal aid in Northern Ireland; and for connected purposes.
The draft Bill is in six parts: The Judiciary; Law Officers and Public Prosecution Service; Other New Institutions; Youth Justice; Miscellaneous; and Supplementary. Each of these parts is explored in more detail below.
Part 1 - The Judiciary
Clause 1 sets out a guarantee of continued judicial independence, which states that, "Those with responsibility for the administration of justice must uphold the continued independence of the judiciary".
Clauses 2 - 9 set out the procedures for the appointment, removal and complaints for judicial offices. Provision is made for a Judicial Appointments Commission (JAC) to select people to be appointed, or recommend for appointment to specific judicial offices that are listed at schedule 1 of the draft Bill. This list of offices may be amended by order of the First Minister and deputy First Minister, acting jointly and with the agreement of the Lord Chief Justice.
The JAC is to consist of a Chairman, who shall be the Lord Chief Justice, and twelve other members appointed by the First Minister and deputy First Minister. Of those twelve members,

five are to be nominated by the Lord Chief Justice,
one is to be a barrister nominated by the General Council of the Bar of Northern Ireland;
one is to be a solicitor nominated by the Law Society of Northern Ireland; and
the remaining five are to be lay members.

In appointing persons to be lay members, the First Minister and deputy First Minister must, so far as possible, ensure that, taken together, they are representative of the community in Northern Ireland. Schedule 2 to the draft Bill makes further provisions in relation to members' tenure, members' salaries, staffing, financial provisions and the operation and procedures of the JAC.

In relation to the most senior judicial offices, that of the Lord Chief Justice and Lords Justices of Appeal, appointments are to be made by Her Majesty, on the recommendation of the Prime Minister, by letters patent under the Great Seal of Northern Ireland. Before making such a recommendation, the Prime Minister must consult with the First Minister and deputy First Minister and the Lord Chief Justice. The JAC shall advise the First Minister and deputy First Minister as to the procedure they should adopt for formulating their response to the Prime Minister; that procedure shall be subject to the approval of the Prime Minister. Provision has also been made for Her Majesty to make appointments of judges to the High Court; such appointments may be made on recommendation of the First Minister and deputy First Minister.
The power to remove a person from the most senior judicial offices, on the grounds of misbehaviour or inability to perform the functions of that office, may be exercised by Her Majesty, following an address by both Houses of Parliament. A motion for the presentation of such an address may only be made by the Prime Minister to the House of Commons; and by the Lord Chancellor to the House of Lords. Before those motions may be made, a tribunal must have recommended to the First Minister and deputy First Minister that that person be removed from office. The Prime Minister, pending the consideration of making a motion for the presentation of an address to Her Majesty, may suspend that person from office.
Appointments to the listed judicial offices may be made by the JAC following receipt of notice from the First Minister and deputy First Minister requiring that selection or recommendation for appointment. In each instance of such notice, the JAC is required to inform the Office of the First Minister and deputy First Minister of the outcome of their deliberations and to make a report, of its decision, to the Office of the First Minister and deputy First Minister. Upon receipt of that report, the First Minister and deputy First Minister may require by notice the JAC to re-consider their decisions. The JAC may, following their re-consideration, re-affirm their original selection or select a different person - in both circumstances the JAC must inform the Office of the First Minister and Deputy First Minister in the manner prescribed above. All decisions for the selection of a person to be appointed by the JAC must be based solely on merit.
The power to remove a person from a listed judicial office, on the grounds of misbehaviour or inability to perform the functions of that office, may be exercised by the First Minister and deputy First Minister, with the agreement of the Lord Chief Justice, following a recommendation from a tribunal. The tribunal may, at any time, when it is considering whether to recommend that such a person be removed from office, make a recommendation to the First Minister and deputy First Minister that that person be suspended from office.
In relation to complaints, the Lord Chief Justice must prepare, and publish, a code of practice relating to the handling of complaints against a person who holds a protected judicial office.
Part 2 - Law Officers and Public Prosecution Service
Clause 20 makes provision for the First Minister and deputy First Minister to appoint a person, who has at least ten years' standing as either a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland, to be Attorney General for Northern Ireland. Upon commencement of this section, the Attorney General for England and Wales shall no longer be Attorney General for Northern Ireland. The power to remove the Attorney General for Northern Ireland from office has been given to the First Minister and deputy First Minister, but may only be exercised following a recommendation of a tribunal, which may be convened by the First Minister and deputy First Minister, whose members are to be selected by the Lord Chancellor in accordance with the provisions of clause 21.
Clause 22 sets out the terms of appointment of the Attorney General for Northern Ireland, who may not be appointed for a period of longer than five years at a time and who is disqualified from being a member of the House of Commons, the Northern Ireland Assembly or a local authority in Northern Ireland. The Attorney General for Northern Ireland may participate in the proceedings of the Assembly to the extent permitted by Standing Orders but may not vote. The Attorney General for Northern Ireland must also submit an annual report to the First Minister and deputy First Minister, which they shall lay before the Assembly and then make arrangements for it to be published.
Clause 25 makes provision for the office of Advocate General for Northern Ireland, the functions of which shall be exercised by the Attorney General for England and Wales. Schedule 5 makes further provision about the functions of that office. The Secretary of State for Northern Ireland may, by order, make provision for the transfer of other functions to that office.
Part 2 of the draft Bill also establishes a Public Prosecution Service to be the single, independent prosecuting authority in Northern Ireland. It will be the responsibility of the Prosecution Service to undertake all prosecutions for both indictable and summary offences committed in Northern Ireland which were previously the responsibility of the Director of Public Prosecutions or the police (apart from fixed penalties for motoring offences).
The Prosecution Service will have two statutory office holders: the Director and Deputy Director of Public Prosecutions, both of whom shall be appointed by the Attorney General for Northern Ireland. The Director may also give advice to the Police Service for Northern Ireland on prosecutorial matters.
Part 3 - Other new institutions
Clauses 41 - 45 make provision for a Chief Inspector of Criminal Justice who must carry out inspections of the following organisations: -

the Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve,
Forensic Science Northern Ireland,
the State Pathologist's Department,
the Public Prosecution Service for Northern Ireland,
the Probation Board for Northern Ireland,
the Northern Ireland Prison Service,
the Juvenile Justice Board,
any body or person (other than the Juvenile Justice Board) with whom the Secretary of State has made arrangements for the provision of juvenile justice centres or attendance centres,
Health and Social Services Boards and Health and Social Services trusts, and
the Compensation Agency.

The Chief Inspector must consult the Secretary of State and the Attorney General for Northern Ireland when preparing his programme of inspections and the Chief Inspector must prepare a report on each inspection for the Secretary of State who shall lay each report before Parliament and arrange for it to be published.
Clauses 46 - 49 make provision for the establishment of a Law Commission for Northern Ireland, which will review the criminal and civil law of Northern Ireland, including procedure and practice, with a view to making recommendations to Government for reform, codification, simplification and consolidation of legislation. It will consist of a Chairperson and four other commissioners, all of which shall be appointed by the Secretary of State.
The Commission is required to provide advice and information to and receive remits from Government. With the consent of the Secretary of State, the Commission will provide advice and information to Northern Ireland departments and other authorities or bodies on proposals for law reform or amendment of any branch of the law of Northern Ireland.
Part 4 - Youth Justice
Clauses 49 - 61 make provision for the youth justice system in Northern Ireland. The aim of the youth justice system is to protect the public by preventing offending by children. The draft Bill provides for three new orders. Those orders are: -

Reparation orders: A reparation order is a new sentence available to courts dealing with child offenders in Northern Ireland. The reparation ordered to be made by the child would be either to the victim of the offence or some other person affected by it or to the community at large. The form of reparation may be varied, for example it may take the form of repairing property in cases of property damage or some community work.
Community responsibility orders: Where a child is found guilty of an offence for which the court could (if the offence were committed by an adult) sentence him/her to a period of imprisonment, the court may make a community responsibility order. Such an order will have two distinct components. The first part will require the offender to attend a specific place for a few hours at a time where they will receive "relevant instruction in citizenship". The second part of the order will require the offender to carry out, for a specified number of hours, such practical activities as the responsible officer considers appropriate in the light of the instruction given to the offender.
Custody care orders: A custody care order may only be imposed on a child who has attained the age of 10 but is not yet 14 and who has been found guilty of an offence for which the court could (if the offence had been committed by an adult) sentence him/her to a period of imprisonment. A child, in respect of whom a custody care order is made, would be held in secure accommodation by an "appropriate authority" for a specified period (rather than being held in a juvenile justice centre), and thereafter be under supervision for a further period.

The draft Bill also makes provision for a system of youth conferencing. A youth conference is a meeting or series of meetings held to consider how a child ought to be dealt with for an offence. The meetings will be under the chairmanship of a person to be known as a youth conference co-ordinator. The aim of the youth conference will be to devise a youth conference plan which will propose how the child should be dealt with. The purpose of a youth conference plan is to require the child to carry out specified actions in order to make reparation for the offence, address the child's offending behaviour, and/or meet the needs of the victim. The content of the plan is for the youth conference to decide, from the various options provided for, such as apologising, making reparation, or participating in activities designed to address offending behaviour, offer education or assist with rehabilitation. The conference can propose any combination of these options it wishes.
There are two distinct types of youth conference: diversionary and court-ordered youth conferences: -

Diversionary youth conferences: A reference to a diversionary youth conference may only be made by the Director of Public Prosecutions and would be made at an early stage, either before proceedings had been instituted for the offence or shortly after, but the Director can only make a reference if the child admits that he has committed the offence.
Court-ordered youth conferences: A court-ordered youth conference would occur after a court had found a child guilty of an offence and provides a way to consider how to deal with the child for the offence in question.

Part 2 of the draft Bill also extends the youth justice provisions to 17 year olds and, in particular, provides that courts may make a juvenile justice centre order.
Part 5 - Miscellaneous
Clauses 62 - 73 set out further provisions in relation to the justice system. In particular they set out arrangements for the display of the Royal Arms at courthouses; make provision in relation to the rights of victims of crimes; make provision in relation to community safety; empowers the Lord Chancellor to direct that exceptional legal aid be available; empower the Lord Chancellor to abolish the Northern Ireland Court Service and to transfer its functions; and require the Northern Ireland Court Service to provide security in courts.
Part 6 - Supplementary
Clauses 74 - 83 make supplementary provisions. They set out the commencement arrangements, provisions for the exercise of order-making powers under the Bill and the extent of the Bill. It also places limitations on the ability of the Northern Ireland Assembly to legislate in some of the areas covered by the Bill.
COMMITTEE'S CONSIDERATION OF
THE PROPOSED LEGISLATION & IMPLEMENTATION PLAN
During the Committee's deliberations on the proposals for reform of the criminal justice system in Northern Ireland, members considered a wide variety of issues. The comments of the Committee are set out below under the following headings: -

General comments;
Structural reform;
Openness and transparency; and
New approaches.

Additionally, the Committee accepted that there were a number of areas where it would be unable to reach consensus. In order to address these issues, the Committee agreed to accept position papers from the political parties of the Assembly which were represented on the Committee. The position papers submitted by those parties are set out at Appendix 4.
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GENERAL COMMENTS

Consultation period
The Committee welcomed the opportunity to consider the proposals for reform of the criminal justice system in Northern Ireland and recognised those proposals as being of major significance for many years ahead. Given the importance of these proposals the Committee considered that a full, proper and meaningful consultation would be of vital importance if the proposals were going to have the impact envisaged by the Criminal Justice Review Group (CJRG).
The consultation on the proposals was launched on 12 November 2001 and originally was due to close on 12 December 2001. This provided only 30-days for the Assembly, and other bodies, to give a considered response to a draft Bill, which contained 83-clauses, and an implementation plan, which sets out action to be taken in respect of 294 recommendations of the CJRG. The members of the Committee and all witnesses that gave evidence, with the exception of the Northern Ireland Office (NIO) and the Northern Ireland Court Service (NICtS), criticised the period of consultation which was provided by the Parliamentary Under-Secretary of State, Des Browne.
The Committee noted the NIO's commitment, as set out in their Equality Scheme, "to provide a period for response of at least eight weeks and to begin consultation as early as possible". Further to this, members noted that the Cabinet Office Code of Practice on written consultations states that, "sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for consultation" and "Consultation should never have to be shortened below an acceptable minimum for reasons of departmental convenience, for example because a department has fallen behind its own implementation schedule".
Following representations from a number of sources, including the Committee, the Parliamentary Under-Secretary of State announced to Parliament, in response to a written question on 29 November 2001, that he had decided to extend the period of consultation, by a further four weeks, to 7 January 2002. Whereas the Committee welcomed this announcement, it was considered that due regard should have been observed in relation to both the Department's commitments and the Cabinet Office guidelines.
Recommendation 1: That the Northern Ireland Office should observe and comply with the Cabinet Office Code of Practice on written consultations, when planning future written consultations.

Independence of the legal profession
In their evidence to the Committee, representatives of the Law Society of Northern Ireland (LSNI) highlighted the important role that is played by solicitors in the criminal justice system. One of the key aspects of their role is that they exercise their responsibilities in a manner "free from political, financial or other influences that may affect [their] independence". This was recognised by the CJRG in their report, which made particular reference to the role played by defence lawyers and the nature of their relationship with their clients, and the negative impact of a misunderstanding of that relationship.
It was suggested by LSNI that a statement on the face of the legislation, similar to that proposed at Clause 1, which safeguards the independence of the Judiciary, should be included in the Bill. The Committee was supportive of this suggestion and considered it to be reasonable to recognise, in statute, the independence of the legal profession.
Recommendation 2: That a new clause be inserted which acknowledges and safeguards the continuing independence and impartiality of the legal profession.

Oversight of the implementation plan
The members of the Committee noted the dearth of clear deadlines in relation to the implementation plan. The Committee was also concerned that the lack of clear targets for the CJRG's recommendations could lead to significant slippage in the delivery of the Government's objectives. The Committee, therefore, considered possible options to maintain the necessary momentum to drive forward the implementation of the criminal justice reforms.
In their evidence to the Committee, the Northern Ireland Human Rights Commission (NIHRC) suggested the appointment of an oversight commissioner - similar to that which had been appointed in relation to the Patten Report on Policing - to keep the progress towards the overall implementation of the proposals under review. Whereas, that proposal was welcomed by a number of members of the Committee, some concerns were raised about the possible negative impact for the overall resources available for implementation, if they were diverted in order to provide for such an appointment. However, the Committee agreed that consideration should be given to the appointment of such a commissioner.
Recommendation 3: That the Secretary of State gives consideration to the appointment of a commissioner with a remit to oversee the implementation of the reform of the criminal justice system, having regard to the resources available to him.
The Committee also gave detailed consideration to other possible mechanisms to oversee the on-going implementation of the reform proposals. One such option was the establishment of a cross-departmental steering group comprising: senior officials of the NIO; senior officials from the Office of the First Minister and deputy First Minister; a consortia representing the interests of the various agencies exercising statutory functions in relation to criminal justice matters; and officers of the Northern Ireland Assembly. The Committee did not give its endorsement to this proposal.
The Committee agreed on the need to give measured and detailed consideration to the review of criminal justice, given its importance as a constitutional issue. The Committee acknowledged that the revision of the criminal justice system would have far reaching implications for all stakeholders. The Committee noted the potential impact there might be on the devolved administration and concluded that the Northern Ireland Assembly should be afforded the opportunity to be consulted, and comment, on criminal justice issues, pending devolution of these responsibilities.
On that basis, the Committee agreed that a Standing Committee of the Assembly could be established to ensure that the proposals put forward by the Northern Ireland Office meet the stated aims of criminal justice system which are to: -

deliver a fair and impartial system of justice to the community;
be responsive to the community's concerns, and encourages community involvement where appropriate;
have the confidence of all parts of the community; and
deliver justice efficiently and effectively.

Recommendation 4: That this Assembly considers the establishment of a Standing Committee, at the earliest opportunity, to be known as the Committee on Criminal Justice, with a remit to: -

(a) make recommendations to the Assembly on the ongoing implementation of the Criminal Justice Review; and

(b) report to the Assembly on criminal justice matters which have been referred to it for consideration.

Human rights and guiding principles

The Committee noted the concerns of the NIHRC, which stated that "the draft Justice (NI) Bill does not put Human Rights at the centre of the reforms in the way in which the review recommended". Furthermore, the Committee noted that this view was shared by a number of witnesses; notably the CAJ which expressed concern at the lack of clear targets for, and apparent mechanisms to drive forward, the recommendations in relation to human rights training.
The Committee considered that a way of addressing this apparent shortfall would be to incorporate, at the appropriate clauses of the draft Bill, references to the accepted human rights standards. However, some members of the Committee were concerned that this might delay the introduction of the draft Bill to Westminster. The Committee agreed that, if this delay could be avoided, a reference to the centrality and importance of human rights to the justice system should be made in the relevant clauses.
Recommendation 5: That the Secretary of State gives consideration to the revision of the clauses of the draft Bill to include references to the accepted human rights standards which would acknowledge the principle that human rights are central to the criminal justice system.

Symbols and declarations
The Committee considered the issues of symbols and declarations in the wider context of court buildings and proceedings but was unable to reach a consensus. Members noted that these issues were likely to be addressed in papers submitted by those political parties of the Assembly which were represented on the Committee.
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STRUCTURAL REFORM

Devolution of justice matters
The Committee considered the implications of the transfer of criminal justice matters to the devolved administration and the consequential impact on the operation and procedures of the Assembly.
The Committee considered where justice matters would be best placed, post devolution. The Committee noted that the Review recommended the creation, on devolution, of a single Department of Justice, headed by a Minister for Justice. The Committee also explored the option of incorporating the justice functions within the Office of the First Minister and deputy First Minister. It was agreed that these options could be further considered by the proposed Standing Committee on Criminal Justice, suggested in this Report.
The Committee also explored the possibility of adding existing functions of the devolved administration to a new department. The Committee noted that victims issues are currently split between the Northern Ireland Office and the Office of the First Minister and deputy First Minister and that some human rights responsibilities, currently rest with that office. The Committee concluded that the proposed Standing Committee could further explore these matters through liaison with the Northern Ireland Office and the Office of the First Minister and deputy First Minister.
Recommendation 6: That the proposed Standing Committee on Criminal Justice make recommendations to the Assembly - to be considered by the Northern Ireland Office and the Northern Ireland Executive - on the form that a Department of Justice may take, following devolution.

Attorney General for Northern Ireland
The Committee considered the role and functions of an Attorney General where they affect the proceedings of the Assembly and acknowledged that provision must be made for his/her participation in the proceedings of the Assembly. The Committee determined that a clear set of procedures, in respect of the following areas of business, will need to be resolved: -

Questions;
Statements;
Voting;
Quorum; and
Register of Interests.

The Committee agreed that the Committee on Procedures might be the most appropriate Committee to resolve these issues.

Recommendation 7: That the Committee on Procedures examine and make recommendations to the Assembly on the extent to which the Attorney General may participate in the proceedings of the Assembly having due regard to best practice in other jurisdictions.

The Committee also determined that consideration needs to be given to the additional functions, proposed in the Review, which may be given to the Attorney General. Those functions were: -

Senior legal adviser to the Northern Ireland Executive;
Responsibility for legislative draftsmen;
The Executive's link with the Law Commission; and
Responsibility for human rights-proofing legislation.

Recommendation 8: That, post devolution, the appropriate steps are taken to define the future role and extent of the Attorney General's responsibilities.

Public Prosecution Service

The Committee noted that the draft Bill establishes a new Public Prosecution Service for Northern Ireland which would be a single independent prosecution service responsible for undertaking all criminal prosecutions, including those currently undertaken by the Police Service for Northern Ireland.
The Committee, and a number of witnesses, expressed concern on the issue of the resources required for creating this new service. The Committee noted the Report of Lord Glidewell into the GB Crown Prosecution Service, which stated that this service was too centralised and bureaucratic. The Report also highlighted serious resource deficiencies in their move to a new prosecution service.
Recommendation 9: That adequate resources be guaranteed to enable the Prosecution Service to carry out its functions.
The Committee considered the issue of disclosure of reasons for bringing a prosecution. The Committee noted the evidence provided by the CAJ which stated:
"The recommendation of the Review was balanced and positive and argued that the balance should shift towards the giving of reasons but accepted that there may be instances where this was not possible because it could conflict with the interests of justice. Essentially the government response is a refusal to accept this recommendation. Nothing is proposed to implement the shift towards giving reasons which the Review recommended."

The Committee concluded that the new Prosecution Service should draw up a code of practice which clearly defines the main elements of its decision-making process with particular regard to the reasons for bringing prosecutions.

Recommendation 10: That greater transparency should be a feature of the decision-making process of the new Public Prosecution Service.

Role of the Probation Board for Northern Ireland (PBNI)
The Committee noted evidence from PBNI, in which serious concerns were expressed about the PBNI becoming a next-steps agency. The Chief Executive stated:
"We are trusted as a neutral body which goes impartially about its job and has no political or sectional interests. Communities are more willing and ready to work with us than with central Government. In other next steps agencies, such as employment ones, we do not see the same level of community involvement other than at an advisory level, and that is not close enough for delivering the service that we want to deliver, which involves working with communities."
The Committee shared the views put forward by PBNI and recognised, and valued, the essential work carried out by that body. It, therefore, recommended that the PBNI remain an independent and impartial body.
Recommendation 11: That the Probation Board of Northern Ireland should remain independent and impartial.

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OPENNESS AND TRANSPARENCY
The Committee noted that the Lord Chancellor is currently responsible for the judicial appointment process and that this responsibility will be devolved to the First Minister and deputy First Minister. The Committee considered that lay appointees, which may be made by the First Minister and deputy First Minister, to the Judicial Appointments Commission, may not carry sufficient weight in the appointments process given the predominance of the judicial membership. The Committee explored the possibility of replacing the lay members of the Judicial Appointments Commission with political representatives, similar to the Northern Ireland Policing Board. Some members supported this amendment to the proposed membership of the Judicial Appointments Commission. However, there was no agreement on this issue. The Committee agreed that this matter should be considered by the Secretary of State.
The Committee noted that the First Minister and deputy First Minister had the power to convene a tribunal to remove the Attorney General from office. The Committee agreed that this unilateral power would not reflect the primacy that the Assembly will have, following the devolution of justice matters, and that the draft Bill should be amended to provide scope for the Assembly to have an input in this area. The Committee agreed that the power to convene a tribunal to consider removing the Attorney General from office should be given to the Assembly.
Recommendation 12: That clause 21(3) of the draft Bill be amended to provide authority for the Assembly to convene a tribunal following a resolution of the Assembly that is passed with the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.

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NEW APPROACHES

Restorative justice
The Committee noted the proposals to set up a system "youth conferencing" and a community restorative justice scheme. In its consideration of evidence from the Criminal Bar Association, the Committee concurred with its view that the lack of legal advice in advance of a youth conference may be prejudicial to the rights of the child.
Recommendation 13: That young people are granted access to legal representation in advance of a youth conference.
In their evidence to the Committee, the PBNI expressed serious concerns about their role in the proposed youth conferencing system. They considered there to be merit in compiling a "suitability" report to the prosecutor in advance of any final decision being made on whether to direct a young person to a youth conference. However, no such provisions have been made in the draft Bill. The Committee shared the concerns of the PBNI and agreed that such a report would be appropriate.
Recommendation 14: That the Northern Ireland Court Service clearly define the role and responsibilities of the Probation Board for Northern Ireland in the youth conferencing process.
The Committee expressed concerns on the whole area of restorative justice, it raised many questions on how the proposed system would integrate into existing court practices. The Committee considered that further work is required to take on-board the experiences of existing restorative justice programmes and on that basis, determined that the proposed Standing Committee on Criminal Justice could further investigate this crucial area of reform. The Committee considered that pilot programmes should be introduced in distinct geographical areas of Northern Ireland in order to provide appropriate methods of assessment, highlighting discrepancies in their application and outcomes.
Recommendation 15: That the Northern Ireland Office carry out additional research into the practical outworking of the Restorative Justice proposals.

Recommendation 16: That the Northern Ireland Office consider setting up pilot projects which will lead to a restorative justice programme in which the whole community will have confidence.

Recommendation 17: That the proposed Standing Committee on Criminal Justice examines, in greater detail, the whole area of restorative justice.

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CONCLUSION
The Committee recognised that the reform of criminal justice has been both difficult and time-consuming. Nevertheless, they adjudged that providing a short period for consultation, having accepted the tight legislative timetable, was not appropriate. The draft Bill and proposed implementation plan will require ongoing scrutiny, continued development and further refinement. The Committee recognised the need for continued liaison with the Northern Ireland Office and the criminal justice agencies in the lead up to the devolution of justice matters to the Northern Ireland Assembly.

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APPENDIX 1

MINUTES OF PROCEEDINGS

Monday 26 November 2001

Tuesday 27 November 2001

Thursday 29 November 2001

Tuesday 4 December 2001

Tuesday 11 December 2001

Thursday 13 December 2001

Monday 8 January 2002

MONDAY 26 NOVEMBER 2001
ROOM 144 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton, Chairperson
Mrs Eileen Bell MLA, Deputy Chairperson
Mr Alex Attwood MLA
Mr Gregory Campbell MLA
Mr David Ervine MLA
Sir John Gorman MLA
Mr Alban Maginness MLA
Mr Mitchel McLaughlin MLA
Mrs Mary Nelis MLA
Mr Ian Paisley Jnr MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh
Mr Hugh Widdis

11.33am: The meeting opened in private session-the Clerk in the Chair.

1. Apologies

No apologies were received.

2. Election of Chairperson and Deputy Chairperson

The Clerk called for nominations for the position of Committee Chairperson.

11.37am: Mr Shipley Dalton joined the meeting.

Sir John Gorman proposed that: Mr Shipley Dalton be the Chairperson of this Committee. Mr Paisley seconded this and the nomination was accepted.

On there being no further nominations the Clerk put the question without debate.

Resolved, that Mr Shipley Dalton, being the only candidate proposed, be Chairperson of this Committee.

11.38am: Mr Shipley Dalton in the Chair.

The Chairperson thanked members for their support and sought nominations for the position of Committee Deputy Chairperson. Mr Maginness proposed that: Mrs Bell be the Deputy Chairperson of this Committee. Mrs Nelis seconded this and the nomination was accepted.

On there being no further nominations the Chairperson put the question without debate.

Resolved, that Mrs Bell, being the only candidate proposed, be Deputy Chairperson of this Committee.

3. Declaration of Interests

The Chairperson asked members to declare any relevant interests. The following members declared their interests as set out below-

Mr Attwood:

Membership of the Law Society of Northern Ireland; and
Membership of the Northern Ireland Policing Board.

Mrs Bell:

Membership of the Probation Board for Northern Ireland.

Mr Shipley Dalton:

Membership of the General Council of the Bar of Northern Ireland.

Mr Maginness:

Membership of the General Council of the Bar of Northern Ireland.

Mr Paisley:

Membership of the Northern Ireland Policing Board.

4. Procedures of the Committee

11.39am: Mr Ervine joined the meeting.

The Chairperson referred members to a memorandum from the Committee Clerk on the procedures of the Committee contained in their briefing papers.

Resolved,

Voting: the Committee agreed that in the absence of consensus, simple majority would determine all decisions.
Public meetings: the Committee agreed that it would hold all evidence sessions in public.
Deputies: the Committee agreed to permit the use of deputies.

5. Forward work programme

The Committee noted a memorandum from the Committee Clerk setting out a proposed forward work programme. Following debate, members' unanimously agreed that the deadline by which the Committee must submit its report was totally unworkable and that the Chairperson would take forward a motion in the Assembly to extend that deadline.

The Committee agreed to invite the following bodies to give evidence-

The Committee on the Administration of Justice;
The Director of Public Prosecutions for Northern Ireland
The Equality Commission for Northern Ireland;
The General Council of the Bar of Northern Ireland;
The Law Society of Northern Ireland;
The Lord Chief Justice of Northern Ireland;
The Northern Ireland Human Rights Commission;
The Northern Ireland Office; and
The Probation Board for Northern Ireland.

Further to this, the Committee agreed to invite written submissions from the political parties of the Assembly that are represented on the Committee.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would next meet on Tuesday, 27 November 2001.

12.15am: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

27 November 2001

TUESDAY 27 NOVEMBER 2001
ROOM 152 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton, Chairperson
Mrs Eileen Bell MLA, Deputy Chairperson
Mr Gregory Campbell MLA
Sir John Gorman MLA
Mr Alban Maginness MLA
Mr Mitchel McLaughlin MLA
Mrs Mary Nelis MLA
Mr Ian Paisley Jnr MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh
Mr Percy Johnston
Mr Hugh Widdis

Apologies: Mr David Ervine MLA

2.35pm: The meeting opened in private session-Mr Shipley Dalton in the Chair.

1. Apologies

The apology was noted.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Monday, 26 November 2001 be agreed.

3. Matters arising

2.38pm: Mr Maginness joined the meeting.

Members noted that a motion had been tabled with the Business Committee to amend the original resolution of the Assembly that established the Ad hoc Committee. It was agreed that the Chairperson should speak on the Committee's behalf during the plenary session.

2.44pm: Mr Paisley joined the meeting.

The Clerk tabled an amended work programme for the Committee; it was agreed that, subject to the Assembly approving the motion to extend the Committee's terms of reference, the Committee would adhere to the work programme, as proposed. The Chairperson sought members' views on the principle of meeting during the recess period; it was agreed that the Committee would, if necessary, meet during the week commencing Monday, 17 December 2001.

It was noted that the Northern Ireland Policing Board would be on an official visit to the United States of America, week commencing Monday, 3 December 2001. The Chairperson requested that those members of the Committee who would be participating in that visit should nominate deputies to serve on the Committee during their absence.

4. Criminal Justice Implementation Plan

Members noted a research paper, prepared by the Assembly's Research & Library Services, on the Criminal Justice Implementation Plan.

2.50pm: The Chairperson called Mr Widdis to the table.

During the question-and-answer session it was agreed that the Committee should seek a further paper on the Public Prosecution Service from Research & Library Services. The Chairperson requested that any additional requests for research, on behalf of the Committee, should be directed through the Clerk.

3.05pm: Mrs Bell left the meeting.

3.11pm: Mr Maginness left the meeting.

3.45pm: Mr Campbell left the meeting.

5. Draft Justice (NI) Bill: First Reading

3.50pm: The Chairperson called Mr Johnston to the table.

Members conducted an initial Article-by-Article reading of the draft Justice (NI) Bill with assistance from the Assembly Legal Advisor.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would next meet on Thursday, 29 November 2001.

4.17pm: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

29 November 2001

THURSDAY 29 NOVEMBER 2001
THE SENATE PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton MLA, Chairperson
Mrs Eileen Bell MLA, Deputy Chairperson
Mr Gregory Campbell MLA
Sir John Gorman MLA
Mr John Kelly MLA
Mr Alban Maginness MLA
Mr Mitchel McLaughlin MLA
Mr Ian Paisley Jnr MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh

Apologies: Mrs Mary Nelis MLA

2.36pm: The meeting opened in public session-Mr Shipley Dalton in the Chair.

1. Apologies

The apology was noted. It was noted that Mr Kelly was deputising for Mrs Nelis.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Tuesday, 27 November 2001 be agreed.

3. Matters arising

Members noted a draft speech that the Chairperson would make to the Assembly at the debate on the extension of the Committee's reporting period. It was noted that the debate was scheduled for 5.30pm on Monday, 3 December 2001.

4. Evidence session: Northern Ireland Human Rights Commission

2.42pm: The Chairperson called the Northern Ireland Human Rights Commission to be examined.

Members heard evidence from the Northern Ireland Human Rights Commission (NIHRC) on the Human Rights aspects of the criminal justice reform proposals. Representing NIHRC were-

Prof. Brice Dickson, Chief Commissioner; and
Dr Linda Moore, Investigations worker.

Members noted that the NIHRC had made a preliminary submission and that they would make their final submission to the Committee in due course.

3.18pm: Mr Maginness left the meeting.

3.38pm: Mrs Bell left the meeting.

3.39pm: Mr Campbell left the meeting.

5. Evidence session: The Law Society of Northern Ireland

3.41pm: The Chairperson called the Law Society of Northern Ireland to be examined.

Members heard evidence from the Law Society of Northern Ireland (LSNI) on the impact of the criminal justice reform proposals on the legal profession. Representing LSNI were-

Mr John Neill, Senior Vice-President; and
Mr John Bailie, Chief Executive.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would next meet at 2.30pm on Tuesday, 4 December 2001.

4.31pm: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

4 December 2001

TUESDAY 4 DECEMBER 2001
ROOM 135 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton MLA, Chairperson
Mr Gregory Campbell MLA
Mr John Kelly MLA
Mrs Patricia Lewsley MLA
Mr Alban Maginness MLA
Mr Pat McNamee MLA
Mr Mark Robinson MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh

Apologies: Mr Alex Attwood MLA
Mrs Eileen Bell MLA, Deputy Chairperson
Sir John Gorman MLA
Mr Mitchel McLaughlin MLA
Mrs Mary Nelis MLA
Mr Ian Paisley Jnr MLA

2.30pm: The meeting opened in private session-Mr Shipley Dalton in the Chair.

1. Apologies

The apologies were noted. It was further noted that the following members would be deputising: Mr Kelly for Mrs Nelis; Mrs Lewsley for Mr Attwood; Mr McNamee for Mr McLaughlin; and Mr Robinson for Mr Paisley.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Thursday, 29 November 2001 be agreed.

3. Matters arising

Members noted that the Assembly had agreed the Chairperson's motion on the extension of the Committee's reporting period.

4. Correspondence

2.34pm: Mrs Lewsley joined the meeting.

Members noted a letter from Include Youth requesting an opportunity to give evidence to the Committee.

Resolved, that the Committee would invite a written submission from Include Youth.

2.37pm: The Chairperson declared the meeting to be in public session.

5. Evidence session: Northern Ireland Office and the Northern Ireland Court Service

2.40pm: The Chairperson called the witnesses to be examined.

Members heard evidence from the Northern Ireland Office (NIO) and the Northern Ireland Court Service. Representing the NIO were-

Mr Brian White, Head of Criminal Justice Policy Division;
Mr Stephen Webb, Head of Criminal Justice Review Implementation Team; and
Mr Mark McGuckin, Head of Criminal Justice Services Division.

Representing the Northern Ireland Court Service were-

Mr David Lavery, Director General, Northern Ireland Court Service; and
Mr Tommy O'Reilly, Northern Ireland Court Service.

Members noted that Mr Stephen Leach, who was due to lead the delegation from the NIO, was unable to attend because of a family bereavement. The Committee agreed to forward a letter of condolence to Mr Leach.

3.09pm: Mrs Lewsley left the meeting.

3.10pm: Mr Robinson joined the meeting.

3.40pm: Mr Robinson left the meeting.

6. Evidence session: The Committee on the Administration of Justice

3.40pm: The Chairperson called the witnesses to be examined.

Members heard evidence from the Committee on the Administration of Justice (CAJ) on the human rights aspects of the criminal justice reform proposals. Representing CAJ were-

Mr Martin O'Brien, Director;
Mr Paul Mageean, Legal Officer; and
Ms Maggie Beirne, Research & Policy Officer.

7. Any other business

No other matters were raised.

8. Date and time of next meeting

The Committee agreed that it would next meet at 2.30pm on Tuesday, 11 December 2001.

4.15pm: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

11 December 2001

TUESDAY 11 DECEMBER 2001
ROOM 152 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton MLA, Chairperson
Mrs Eileen Bell MLA, Deputy Chairperson
Dr Esmond Birnie MLA
Mr Gregory Campbell MLA
Mr David Ervine MLA
Mrs Patricia Lewsley MLA
Mr Alban Maginness MLA
Mr Pat McNamee MLA
Mrs Mary Nelis MLA
Mr Ian Paisley Jnr MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh

Apologies: Mr Alex Attwood MLA
Sir John Gorman MLA
Mr Mitchel McLaughlin MLA

2.35pm: The meeting opened in private session-Mr Shipley Dalton in the Chair.

1. Apologies

The apologies were noted. It was further noted that the following members would be deputising Dr Birnie for Sir John Gorman; Mrs Lewsley for Mr Attwood; and Mr McNamee for Mr McLaughlin.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Tuesday, 4 December 2001 be agreed.

Matters arising
Members noted a discussion paper tabled by the Clerk identifying key issues for the Committee's draft Report to be discussed at the Committee's next meeting.

2.38pm: Dr Birnie joined the meeting.

Mr Paisley enquired if there had been any written responses from the Law Society or the Human Rights Commission in relation to points raised during evidence. It was noted that no further papers had been received.

Mr Maginness proposed that the Committee should write to Sir John Gorman extending its best wishes and speedy recovery. It was agreed that the Clerk would write to Sir John.

2.43pm: Mrs Bell and Mrs Lewsley joined the meeting.

2.45pm: The Chairperson declared the meeting to be in public session.
Evidence session: Probation Board for Northern Ireland

Mrs Bell declared that she was a member of the Probation Board for Northern Ireland and that this interest was published in the Register of Interests.

2.45pm: The Chairperson called the witnesses to be examined.

Members heard evidence from the Probation Board for Northern Ireland (PBNI). Representing PBNI were-

Mr Brian Rowntree, Chairperson of the Board;
Mr Oliver Brannigan, Chief Executive;
Mr Brendan Fulton, Assistant Chief Probation Officer; and
Ms Cheryl Lamont, Assistant Chief Probation Officer.

3.07pm: Mr Ervine left the meeting.

3.10pm: Mrs Nelis left the meeting.

3.10pm: The Chairperson suspended proceedings for 25 minutes - division in the Assembly.

3.35pm: The Chairperson reconvened the meeting.

3.38pm: Mrs Bell left the meeting.

Evidence session: The Criminal Bar Association

Mr Shipley Dalton and Mr Maginness declared that they are members of the General Council of the Bar of Northern Ireland and that interest has been published in the Register of Interests.

3.55pm: The Chairperson called the witnesses to be examined.

Members heard evidence from the Criminal Bar Association (CBA). Representing CBA were-

Mr John Larkin, Vice-Chairperson;
Mr Gordon Kerr
Ms Tessa Kitson;
Ms Geralyn McNally; and
Mr Donal Sayers.

4.03pm: Mr McNamee left the meeting.

4.15pm: Mrs Lewsley left the meeting.

6. Any other business

The Chairperson requested leave of the Committee to permit the internal publication of the papers prepared for their information by Research and Library Services. The Committee had no objections.

7. Date and time of next meeting

The Committee agreed that it would next meet at 2.30pm on Thursday, 13 December 2001.

4.38pm: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

13 December 2001

THURSDAY 13 DECEMBER 2001
ROOM 135 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton MLA, Chairperson
Mr Alban Maginness MLA
Mr Mick Murphy MLA
Mr Mitchel McLaughlin MLA
Mr Ian Paisley Jnr MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh
Mr Hugh Widdis

Apologies: Mr Alex Attwood MLA
Mrs Eileen Bell MLA, Deputy Chairperson
Sir John Gorman MLA
Mrs Mary Nelis MLA

2.50pm: The meeting opened in private session-Mr Shipley Dalton in the Chair.

1. Apologies

The apologies were noted. It was further noted that Mr Murphy would be deputising for Mrs Nelis.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Tuesday, 11 December 2001 be agreed.

Matters arising
Members noted a research paper prepared by Research and Library Services detailing the role of public prosecutors in Northern Ireland and other jurisdictions.
Written submissions
Members noted a written submission received on behalf of Include Youth and the Children's Law Centre. It was agreed that the submission be appended to the Committee's Report.
Party submissions
Members noted position papers from the Alliance Party; and the Social Democratic and Labour Party, it was further noted that Sinn Fein had made a preliminary submission. It was agreed that parties could make submissions up to the end of the Christmas recess period.
Report of the Committee's Proceedings
Members noted a discussion paper, prepared by the Committee Clerk, on possible issues to raise in the Committee's Report. Following deliberation, it was agreed that the Committee Clerk should prepare a draft Report for consideration at the Committee's next meeting.
Any other business
The Chairperson informed members that he had received an invitation from the Parliamentary Under-Secretary of State, Des Browne, to meet and discuss issues that had been raised during the Committee's proceedings. It was agreed that the Chairperson should accept this invitation and that the Committee Clerk should be in attendance at that meeting.
Date and time of next meeting

The Committee agreed that it would next meet at 11.30am on Monday, 7 January 2002.

4.20pm: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

8 January 2002

TUESDAY 8 JANUARY 2002
ROOM 21 PARLIAMENT BUILDINGS.

Present: Mr Duncan Shipley Dalton MLA, Chairperson
Mrs Eileen Bell MLA, Deputy Chairperson
Sir John Gorman MLA
Mr David Ervine MLA
Mr Alban Maginness MLA
Mr Mitchel McLaughlin MLA
Mrs Mary Nelis MLA

Attendees: Mr Tony Logue, Clerk of Ad hoc Committees
Mr Damien McVeigh

Apologies: Mr Ian Paisley Jnr MLA

10.10am: The meeting opened in private session-Mr Shipley Dalton in the Chair.

1. Apologies

The apology was noted.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Thursday, 13 December 2001 be agreed.

3. Matters arising

The Chairperson briefed members on his meeting with the Parliamentary Under-Secretary of State, Des Browne, on 19 December 2001.

10.14am: Mrs Bell joined the meeting.

Members noted that a summary of Lord Glidewell's report on the Review of the Crown Prosecution Service had been tabled.

4. Written submissions from witnesses

Members noted that further submissions had been received from the Law Society of Northern Ireland; the Committee on the Administration of Justice; and the Northern Ireland Human Rights Commission. It was agreed that the submissions be appended to the Committee's Report.

5. Party submissions

Members noted position papers from the Democratic Unionist Party and Sinn Fein. It was further noted that all party submissions received would be appended to the Committee's Report.

6. Report of the Committee's Proceedings

Members noted a draft Report on the proceedings of the Committee tabled at the meeting. It was agreed that the Committee Clerk should read through each paragraph of the draft report and that members could raise points to be discussed following each section.

Paragraphs 1 - 14 (Background to the Report) read and agreed.

Paragraphs 15 - 43 (Report of the Criminal Justice Review Group) read and agreed.

Paragraphs 44 - 45 (Committee's consideration of the proposed legislation and the implementation plan) read and agreed.

Paragraphs 46 - 49 (Consultation period) read and agreed.

Recommendation 1 read and agreed.

Paragraphs 50 - 51 (Independence of the legal profession) read. The Chairperson raised the concerns that the Parliamentary Under-Secretary of State had made in relation to the Committee's comments in these paragraphs. Following debate, it was agreed that the comments should remain as drafted.

Recommendation 2 read and agreed.

Paragraphs 52 - 53 (Oversight of the implementation plan) read and agreed.

Recommendation 3 read and agreed.

Paragraphs 54 - 55 read and agreed.

Paragraph 56 read. Mr McLaughlin proposed that, in paragraph 56, the word 'could' should be inserted after 'of the Assembly'. Following debate, the amendment was agreed. Paragraph 56 read, as amended, and agreed.

Recommendation 4 read. It was agreed, as a consequence to the amendment to paragraph 56, that recommendation 4 should be amended by replacing the word 'establishes' with 'considers the establishment of'. Further to this, Mr Ervine proposed that 'at the earliest opportunity' be inserted following 'Standing Committee. This proposed amendment was agreed. Recommendation 4 read, as amended, and agreed.

Paragraphs 57 - 58 (Human rights and guiding principles) read and agreed.

Recommendation 5 read and agreed.

Paragraph 59 (Symbols and declarations) read and agreed.

Paragraphs 60 - 61 (Devolution of justice matters) read. Members noted that the Committee Clerk had tabled an addendum to paragraphs 60 - 61. The addendum was read and it was agreed that it should replace the original draft text. [The addendum introduced an addition paragraph, consequently, paragraphs 62 - 64, as considered below, have been re-numbered in the Committee's Report.]

Recommendation 6 read, as amended by the addendum to the draft report, and agreed.

Recommendation 7 read. It was agreed, as a consequence of the addendum to the draft report, that this recommendation should be deleted. [As a consequence of this amendment, Recommendations 8 - 10, as considered below, have been re-numbered in the Committee's Report.]

Paragraph 62 (Attorney General for Northern Ireland) read and agreed.

Recommendation 8 read and agreed.

Paragraph 63 read and agreed.

Paragraph 64 read. Mr McLaughlin proposed that this paragraph be deleted. Following debate, it was agreed that paragraph 64 be deleted.

Recommendation 9 read and agreed.

Paragraphs 65 - 66 (Public Prosecution Service) read and agreed.

Recommendation 10 read and agreed.

Paragraph 67 read and agreed. Mr McLaughlin proposed that a new recommendation be inserted to reflect the Committee's comments in this paragraph. It was agreed that this recommendation should be made.

Paragraphs 68 - 69 (Role of the Probation Board for Northern Ireland) read and agreed.

Recommendation 11 read and agreed.

Paragraph 70 (Openness and transparency) read. Members noted that the Committee Clerk had tabled an addendum to paragraph 70. The addendum was read and it was agreed that it should replace the original draft text.

Recommendation 12 read. It was agreed, as a consequence of the addendum to the draft report, that this recommendation should be deleted. [As a consequence of this amendment, Recommendations 13 - 17, as considered below, have been re-numbered in the Committee's Report.]

11.00am: Mr McLaughlin left the meeting.

Paragraph 71 read and agreed.

Recommendation 13 read and agreed.

Paragraph 72 (Restorative justice) read and agreed.

Recommendation 14 read and agreed.

Paragraph 73 read and agreed.

Recommendation 15 read and agreed.

Paragraph 74 read and agreed.

Recommendations 16 - 17 read and agreed. Mr Ervine proposed that a new recommendation should be appended to this section to highlight the possible role that could be played by the suggested Standing Committee on Criminal Justice in this area. Following debate, it was agreed that this recommendation be made.

Paragraph 75 (Conclusion) read and agreed.

Mrs Nelis proposed that the terms of reference of the Criminal Justice Review Group should be included in the Committee's Report. Following debate, it was agreed that the terms of reference be inserted after paragraph 15.

Following the reading of the draft report, the Chairperson put the question without further debate-

Resolved, that the Committee orders the report, as amended, to be printed.

7. Any other business

The Chairperson proposed that he have leave of the Committee to approve the draft Minutes of Evidence of the Committee's proceedings and the Minutes of Proceedings for 8 January 2002.

Resolved, that the Chairperson shall have leave to approve the Minutes of Evidence and Proceedings.

8. Date and time of next meeting

The Committee agreed that it would not hold any further meetings.

11.17am: The Chairperson adjourned the meeting.

Mr Duncan Shipley Dalton MLA
CHAIRPERSON

8 January 2002

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APPENDIX 2

LIST OF WITNESSES

The Committee on the Administration of Justice

Mr Martin O'Brien, Director;

Mr Paul Mageean, Legal Officer; and

Ms Maggie Beirne, Research & Policy Officer.

The Criminal Bar Association

Mr John Larkin, Vice-Chairperson;

Mr Gordon Kerr;

Ms Tessa Kitson;

Ms Geralyn McNally; and

Mr Donal Sayers.

The Law Society of Northern Ireland

Mr John Neill, Senior Vice-President; and

Mr John Bailie, Chief Executive.

The Northern Ireland Courts Service

Mr David Lavery, Director; and

Mr Tommy O'Reilly, Head of Corporate Services.

The Northern Ireland Human Rights Commission

Prof. Brice Dickson, Chief Commissioner; and

Dr Linda Moore, Investigations worker.

The Northern Ireland Office

Mr Brian White, Head of Criminal Justice Policy Division;

Mr Stephen Webb, Head of Criminal Justice Review Implementation Team; and

Mr Mark McGuckin, Head of Criminal Justice Services Division.

The Probation Board for Northern Ireland

Mr Brian Rowntree, Chairperson;

Mr Oliver Brannigan, Chief Executive;

Mr Brendan Fulton, Assistant Chief Probation Officer; and

Ms Cheryl Lamont, Assistant Chief Probation Officer.

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APPENDIX 3

MINUTES OF EVIDENCE

Thursday 29 November 2001

The Northern Ireland Human Rights Commission

The Law Society of Northern Ireland 49

Tuesday 4 December 2001

The Northern Ireland Court Service and The Northern Ireland Office

The Committee on the Administration of Justice

Tuesday 11 December 2001

The Probation Board for Northern Ireland

The Criminal Bar Association 79

MINUTES OF EVIDENCE

Thursday 29 November 2001

Members present:

Mr Dalton (Chairperson)
Mrs E Bell (Deputy Chairperson)
Mr A Maginness
Mr Campbell
Sir John Gorman
Mr McLaughlin
Mr Paisley Jnr
Mr J Kelly

Witnesses:

Prof B Dickson ) Northern Ireland Human
Dr L Moore ) Rights Commission

The Chairperson: Welcome to the Committee, and thank you for your time.
Mrs E Bell: I know both of the witnesses personally, and I have to declare that as an interest. They are my friends.
Mr Dalton: All Members should have received copies of your written submission. I would like you to address that, and then Members will ask questions.
Prof Dickson: Thank you. I will pick out some of the points made in the submission you received this morning. I want to reiterate that it is a preliminary document. The Northern Ireland Human Rights Commission (NIHRC) has not had an opportunity to study the draft Justice (Northern Ireland) Bill in detail, and I will have to reserve the right to alter some of the views expressed in the document in the light of further discussion within the NIHRC.
We welcome the publication of the draft Justice (Northern Ireland) Bill, although it is late in the day. However, we are disappointed that human rights have not been put at the centre of the draft Bill in the same way they were in the Criminal Justice Review of March 2000. Indeed, if you look at the index of the Criminal Justice Review Implementation Plan and correlate the number of recommendations with the number of clauses in the draft Bill which implement them, you will see that the first 16 recommendations dealing with human rights have not been reflected in the draft Bill at all. Some of them are being implemented in other ways. However, we regret the lack of centrality of human rights in the draft Bill.
We have noted that many parts of the draft Bill are dependent on the devolution of criminal justice to the Assembly. While we understand the political reason for that, from a human rights point of view there is no merit in delaying simply because a different Parliament happens to be responsible for the matter.
We would have liked to see a statutory statement of the aims of the criminal justice system; one of those aims ought to be the promotion and protection of human rights.
In part I of the draft Bill, dealing with the judiciary, we would like further reference to be made to the relevant international standards. One of the objectives of the Human Rights Commission is to have the international standards on human rights applied at every level of Northern Irish society; especially as the UK Government have agreed to abide by these standards at the international level. We are simply ensuring that those standards are locally implemented. We refer to the United Nations Basic Principles on the Independence of the Judiciary and have cited principle 2, which is particularly worth including in the draft Bill. We want appointments to the proposed judicial appointments commission (JAC) to be made after a properly advertised and rigorously objective selection system. That would apply particularly to the lay members who are to be appointed by the First Minister and the Deputy First Minister.
The procedures contained in clause 4 for the appointment of the Lord Chief Justice seem to be unduly cumbersome and convoluted. We do not see why the judicial appointments commission should not be responsible for making recommendations to the Queen on whom to appoint. There are further difficulties with the proposed tribunal to consider the removal of judges and also the apparently separate - although that is not made clear in the draft Bill - tribunal to deal with complaints against judges.
Part II of the draft Bill deals with prosecution. On our initial reading of the draft Bill, there are several respects in which the recommendations of the review do not seem to have been implemented. For example, paragraph 19 of our document points out that the review recommended that it should be an offence to seek to influence a prosecutor not to pursue a case. That does not seem to have implemented in the draft Bill. Likewise, paragraph 20 stresses that the review recommended that, in certain situations, the prosecutor should seek to give as full an explanation as possible as to why there has been no prosecution in a particular case. Again, that does not seem to have been implemented. We refer to the UN Guidelines on the Role of Prosecutors, which we want to see incorporated, at least in part, in the proposed code of ethics for prosecutors.
Part III deals with the chief inspector and the Northern Ireland Law Commission (NILC), but does not specify what standards the chief inspector is to apply when carrying out inspections. One of those standards should be the protection of internationally accepted human rights. As regards NILC, the draft Bill preserves too much power in the Secretary of State to control the work of the Law Commission. That role will presumably transfer to the First Minister and the Deputy First Minister after devolution of justice matters. Dr Moore will speak about Part IV of the draft Bill.
Dr Moore: The NIHRC is disappointed that the draft Bill does not raise the age of criminal responsibility. We understand that the criminal justice review document did not, in fact, recommend that the age be raised, but the NIHRC's view is that international standards demand a higher age of criminal responsibility.
I should correct a point in our paper, which stated that the bill of rights proposes that the age of criminal responsibility be raised to age 14. In fact, we at the NIHRC have proposed that the age of criminal responsibility be raised to at least 12. We are currently consulting on whether that should be higher. An amended copy of the paper will be sent to the Committee.
Clause 49 of the draft Bill sets out the aims of the youth justice system. In particular, the draft Bill states that the aim of the youth justice system is to protect the public by preventing offending by children. That does not comply with the criminal justice review, which recommended that the statement of principles should have due regard to international standards to which the UK has given a commitment. Those standards include, for example, the UN Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, or "Beijing Rules". Those guidelines stress the principles of re-education, rehabilitation and the child's right to play a constructive role in society. The guidelines also stress that society itself has a duty to the child, as well as stressing the child's responsibility. The NIHRC wants to see that reviewed.
Clause 49(3) also says that all persons and bodies exercising functions in relation to the youth justice system must have regard to the "welfare" of children. That does not comply with international standards, particularly the UN Convention on the Rights of the Child, which stresses the principle of the "best interest" of every child. The convention states that the best interests of the child shall be a primary consideration in all decisions affecting the child. Again, the NIHRC is unhappy with that.
We welcome the definition of children in clause 49(6), as
"persons who are under the age of 18."

It also welcomes the extension of the juvenile justice system to 17-year olds. We welcome the fact that 17-year olds will be included in the remit of the youth courts. However, we remain concerned about 17-year olds being held in young offenders' centres, and we disagreed with the criminal justice review group whose recommendation that was.
The NIHRC is also concerned that children as young as 15 can be remanded in young offenders' centres under the Criminal Justice (Children) (NI) Order 1998. The NIHRC would have liked to have seen that power repealed in the new legislation, as it is contrary to international standards, which state clearly that children in detention must be held separately from adults.
As Prof Dickson said, the NIHRC has not had a chance to study the new reparation orders and community responsibility orders in detail. It welcomes the focus on reparation and community service in principle. The NIHRC has concerns about the training needs of those who are involved in supervising the young people under these orders. They can be probation officers, social workers or others designated by the Secretary of State. It is important that those people be properly trained to deal with young people who have disturbed behaviour.
Children who are under reparation orders will be subject to a report carried out by the officer, whether that is the probation officer or the social worker. It is important that the report considers an analysis of the child's needs, including his or her psychological needs. That is not included in the legislation at present.
I would like to correct point 34 of our written submission, which should say
"The Commission welcomes the fact that children aged 10 to 13 who are found guilty of criminal offences will not be held in juvenile justice centres, but we would prefer this goal to be achieved through the raising of the age of criminal responsibility to 14."

The NIHRC concerned that children aged 10 to 13 can be remanded in juvenile justice centres, and, in particular, that children can be sent to juvenile justice centres under Police and Criminal Evidence (PACE) legislation. At present under PACE, children as young as 12 may be sent to Lisnevin Juvenile Justice Centre and held there overnight. That can be frightening for the children involved. There is concern that the juvenile justice centres are used as holding centres, rather than places of rehabilitation. We would have liked the legislation to address that.
The NIHRC is concerned about the name of the custody care orders in clause 52. It is to be hoped that staff in secure care accommodation will be consulted about how they feel their role will change if the secure accommodation has a function of custody, as well as of care. There is also concern about the availability of secure-care beds. As the Committee may know, lay magistrates have raised serious concerns about the lack of availability of secure beds, which has already led to the death of a fifteen-year-old boy, for whom no suitable accommodation was available. We fail to see how the legislation will address that issue. Sending more children to the secure-care facilities without suitable provision might make the situation worse.
The NIHRC is also concerned about potential stigma that could be attached to children in care, if some children in secure care are there under custody care orders, while others are there purely for care reasons. There is no wish to see a return to the old training-school system.
Finally, the NIHRC welcomes the principle of youth conferencing, but needs time to study the provisions in detail.
Prof Dickson: I do not have much more to say about part V of the draft Bill. We have yet to reach a view on clause 62, which deals with the display of the Royal Arms in courtrooms. We welcome victim information schemes in principle, but it is important to ensure that a balance is reached between the rights of victims and the rights of ex-prisoners.
In clause 67, there should be a requirement - rather than a permissive power - for the Secretary of State to establish the local community safety partnerships. They should be broadly representative of the community as required by section 75 of the Northern Ireland Act.
We welcome the suggested changes to the legal aid scheme. However, we would still like to have the right to funding from the legal aid scheme for coroner's inquests, subject to financial eligibility tests.
The Chairperson: Thank you for your presentation.
Mr A Maginness: Looking at the overall proposal and the balance between lay members and members of the judiciary on the judicial appointments commission, do you think it is weighted more heavily in favour of judicial representation rather than lay representation? A lot of power for future appointments will reside with the judiciary. Have you a view on that?
Prof Dickson: We have not looked at that in detail. Of the 13 proposed members of the commission, six would be judges and seven would not. However, two of the seven are eligible to be judges, as one is a senior barrister and the other a senior solicitor. We are content that the majority of the members of the commission will be non-judges. We would like a proper selection system - especially of the lay people - prior to any nominations, even those who are to be nominated by the Lord Chief Justice. Those eventually appointed should have the required competence.
Mr A Maginness: As regards the actual appointment of judges by the commission, have you any comment on the absence in the draft Bill of a statutory requirement in relation to the judges, as a body of professionals, being reflective of the community in a religious and political sense?
Prof Dickson: We raised that point in our submission to the criminal justice review and in our response to the criminal justice review. We have noted, and are concerned, that that is not reflected in the draft Bill. We are not a body that believes that the judges should be representative of society, but we would use the word that you used - "reflective" of society.
Mr A Maginness: Do you think that there is a deficiency in the draft Bill, in that that is not put into statutory form as a criterion for the commission to meet when appointing judges?
Prof Dickson: We are concerned about that, and we are also concerned about the lack of criteria in general, and the lack of specificity regarding the process by which the commission would go about appointing judges. That does not seen to be dealt with in any significant detail.
Mr A Maginness: Thank you very much.
Sir John Gorman: I get the impression form reading this document, and from what you have said, that you feel a sense of resentment about this, that human rights is not mentioned in capital letters. Is that correct?
Prof Dickson: Resentment is the wrong word.
Sir John Gorman: Disappointment?
Prof Dickson: Disappointment. We are, after all, a statutory body charged with promoting and protecting human rights, and that is our concern when we are commenting on any draft legislation. Given the centrality of the concept within the review report 18 months ago, or longer, which we welcomed and understood was widely acclaimed throughout Northern Ireland, we think that the Draft Bill disappoints in that respect.
Sir John Gorman: The review was obviously something that you put much effort into. The first few paragraphs of your submission are not even mentioned here.
Prof Dickson: That is exactly right. One of the research reports produced for the review went into significant detail on human rights standards. It reproduced them in full text. We expected significant reference to be made to those texts in the draft Bill itself. We are disappointed that that has not happened, especially as those are texts that the British Government have already agreed to abide by, but have not incorporated into domestic law.
Sir John Gorman: Presumably this is a criticism that could be corrected after consultation?
Prof Dickson: Yes, I would hope so.
Sir John Gorman: The chief inspector of criminal justice is going to be an important person in all matters of criminal investigation, et cetera. Clause 42(2) of the draft Justice (Northern Ireland) Bill, in relation to his power to carry out inspections, worries me slightly. It says:
"But the Chief Inspector must not carry out inspections of an organisation if he is satisfied that the organisation is subject to adequate inspection by someone other than him."

You might imagine that that refers to Her Majesty's Inspector of Constabulary. Taking a pessimistic view of the way things work in life, might it not be possible to have a chief inspector falling out with Her Majesty's inspector and saying that these people are not at all suitable? What happens then? Could a fracture arise between the role of Her Majesty's inspector and that of the chief inspector? We are talking about double negatives here, which is always a complicated thing to do. Do you see my point?
Prof Dickson: I do. The Human Rights Commission's initial view would be that clause 42(2) strikes an appropriate balance. It discourages duplication of effort and wastage of public money through doing the same thing twice, if not three times. Yet it leaves the door open to a second inspection to be carried out in situations where the chief inspector of criminal justice believes that an inspection that has occurred was not thorough enough.
Sir John Gorman: But he cannot actually carry it out?
Prof Dickson: Only if he is satisfied - [Interruption].
Sir John Gorman: What if he is not satisfied?
Prof Dickson: If he is not satisfied, presumably he can carry out an inspection. If he thinks that Her Majesty's Inspectorate of Constabulary or Inspector of Prisons has not done a good enough job, then the chief inspector of criminal justice - [Interruption].
Sir John Gorman: It appears to me that perhaps more felicitous wording might be used there, so that we do not use double negatives, et cetera.
Prof Dickson: Yes, that is correct.
Sir John Gorman: The third thing that I would like to ask your view on is the role of the Director of Public Prosecutions outlined in clause 29. I was a senior member of the RUC for 15 years. I have the greatest worry about that particular clause. The explanatory notes state that:
"the Director will have a duty to take over all prosecutions instituted by the police. On commencement the Director will take over responsibility for all prosecutions instituted by the police."

Presumably "commencement" means the commencement of the function of the Act - or does it means when the power is devolved? It is a bit unclear.
How realistic is that role? Even if the level of crime falls, we would be talking about tens of thousands of prosecutions. How could that be done? I have made enquiries, and I found that the Director of Public Prosecutions would have a staff of 150. How practical is this system?
Prof Dickson: Resources that are currently being used in the Police Service will have to be diverted to the new office of the prosecution service. One of the central recommendations of the criminal justice review was that the police should cease to have responsibility for prosecutions. The review recommended that there should be one central prosecution service, which is something that the Human Rights Commission strongly supports.
If your information is that the prosecution service will be under-resourced, I agree that that is a serious matter. However, in principle, we support the idea that the prosecution service should take over responsibility for all prosecutions that, until now, were carried out by the police.
Mr McLaughlin: You made a very good point about the issue of human rights, and I assume that you have addressed the matter in further detail in your more substantial submission. The issue of human rights training for the judiciary does not seem to be properly addressed by the implementation plan or the draft legislation. It is made clear that such training would be voluntary. That issue arises from my party's concern about the independence of the appointment process of the judiciary. Hopefully that issue will be addressed in the legislative process. We are concerned that human rights training is done on a voluntary basis, given that we are attempting to resolve the issue of alienation from the judicial process which came about because of our unfortunate history. Could you comment on that?
Prof Dickson: The Human Rights Commission wants the criteria that are adopted by the judicial appointments commission to include a reference to a knowledge of, or expertise in, human rights law. As we said in paragraph 14 of our paper, the draft Bill should make provision for initial and in-service training for the judiciary. The Judicial Studies Board (JSB) has done good work in training judges on the Human Rights Act 1998, in the past couple of years. However, that training should be placed on a statutory footing and given more resources so that all levels of the judiciary, from the lay magistrates to the top, can be made more aware of developments on the human rights front.
Mr McLaughlin: You referred to a commissioner to oversee the system, as we had in the policing situation. My party is not entirely satisfied with the remit that was developed in that case. Recommendation 95 is applied to the judicial appointment process. Clearly, like my party, you envisage the development of a much broader role. Do you intend to address that further in your more substantial submission?
Prof Dickson: Yes. Paragraph six of our paper states that someone should be appointed to oversee the implementation of the reforms. Given their size and importance, the reforms are comparable to the recent policing reforms. Much depends on proper implementation, so we shall embellish that point in our next paper.
Mr McLaughlin: You referred to the word "realm" as one you could envisage creating difficulties. Is "jurisdiction" a more appropriate word than that used in the draft legislation?
Prof Dickson: You are referring to paragraph 13 of our paper. It is not so much the word "realm" to which we currently object. It is the fact that, as far as I am aware, Northern Ireland itself is not a realm, but merely part of one; it is important that the oath's wording be accurate. The laws and usages of this part of the realm are different from those of other areas. I can see that the word "jurisdiction" might be more appropriate.
Mr J Kelly: I share your disappointment that human rights have not been put at the centre of the reforms as the review recommended. Indeed, in paragraph 5 of your initial comments you say
"Perhaps the most glaring omission in the early part of the draft Bill is the failure to include any statement of the aims of the criminal justice system."

One such aim should clearly be to promote the protection of human rights, and I should welcome that too. I echo Mr McLaughlin's comments on the Northern Ireland Human Rights Commission. I shall quote from paragraph 6 of your initial comments.

"In its recommendation no. 95, the Review envisaged the appointment of some such person in the specific context of appointment to judicial posts."

Are you putting those two together?
In paragraph 18 of your initial comments on part II of the draft Bill, you say that
"The Review recommended (No. 45) that there should be no power in the attorney General to direct the DPP."

It is not clear from clause 37 that this recommendation is clearly implemented. How should that be done?
I shall quote from paragraph 19 of your initial comments.
"The Review recommended (No. 46) that it should be an offence to seek to influence the prosecutor not to pursue a case."

Ought there also to be some recommendation regarding the pursuit of a frivolous or quasi-political case?
Paragraph 20 states that
"The Review recommended (No. 49) that in certain situations the prosecutor should seek to give as full an explanation as possible as to why there has been no prosecution."

Should that not also apply to reasons why there was a prosecution?
Prof Dickson: In paragraph 6, we simply refer to the fact that the criminal justice review envisaged appointing someone to perform a supervisory function in one specific context, albeit on an interim basis, until a judicial appointments commission had been set up. We are simply recommending that that principle be extended to the implementation of the whole draft Bill.
Mr J Kelly: In paragraph 18 of your initial comments it states
"The Review recommended (No. 45) that there should be no power in the attorney General to direct the DPP."
Prof Dickson: I shall have to apologise both to the Director of Public Prosecutions and the Attorney General, but I find the relationship between those two bodies somewhat arcane and difficult to understand. We may be getting matters slightly wrong, but the review itself recommended that there be no power in the Attorney General to direct the Director of Public Prosecutions. If that is the intention of clause 37, that does not seem clear on the face of it. We very much support the independence of the Office of the Director of Public Prosecutions.
Mr J Kelly: You would recommend it.
Prof Dickson: Indeed, for the Attorney General has a more quasi-political role to play and should not influence the Director of Public Prosecutions (DPP).
I shall turn to your points regarding paragraphs 19 and 20. I do not see why the reforms we recommend and which the review recommended should not extend to situations where a prosecution is being pursued rather than not being pursued. Our own experience of trying to obtain information about the lack of prosecution from the current Office of the Director of Public Prosecutions has been very bad. We note that the courts themselves have been very reluctant to order the Office of the Director of Public Prosecutions to disclose reasons for not prosecuting. That is regrettable in an open society.
Mr J Kelly: I asked that question because there is a perception - perhaps a false one - that the DPP's office pursues cases for political or other reasons.
Mrs E Bell: I appreciate that your submission comprises initial comments. My party is still looking through the draft Bill and implementation plan. At this stage, I will confine my questions to your submission. We can obtain further information in writing.
Paragraph 12 of the submission deals with complaints against judges. It states
"It is not clear who would be entitled to sit on such a tribunal".

I share the Commission's concerns. Do you agree that there is a need for a more transparent mechanism for complaints that would serve the practical purpose of letting the public know that complaints are being dealt with effectively? We have already discussed perceptions that can sometimes restrict a good judicial process. Other than the Lord Chief Justice, have you any other suggestions about who should prepare the code of practice? Will you suggest someone, or do you believe that responsibility should not land on that position?
You have expressed concern about addressing the needs of young people who are subject to community service and reparation orders. As a member of the Probation Board of Northern Ireland (PBNI), I share those concerns. Are you suggesting that responsibility for that issue should be extended to the Probation Board, which already has a duty of care and already carries out a certain amount of that work? Alternatively, do you believe that another organisation should be set up to deal with the matter - particularly where young people are involved? What do you think will happen to the growing number of children under 10 years of age, and aged 10 to 14, who unfortunately offend in a large number of areas? Where do you suggest they go?
Prof Dickson: I will ask my colleague Dr Moore to respond to the questions about youth justice. The Commission welcomes the introduction of a code of practice, and a tribunal to deal with complaints about judges. We have received numerous complaints about how judges treat people in court. It is appropriate to set up a proper complaints system. We have not given detailed consideration to who, other than the Lord Chief Justice, should draw up the code of practice or sit on the tribunal. However, we will call for considerable lay membership or non-judicial membership of any such tribunal to ensure that the ordinary person on the street is represented.
Dr Moore: I hope I have understood your question correctly - you asked if the Probation Board would be responsible for the community service order.
Mrs E Bell: The Probation Board already carries out a great deal of that type of work. I believe it will be made a Next Steps agency when devolution of functions is introduced. However, at the moment there is a considerable resource problem. Devolution of functions will be a matter for the Assembly when the time comes. In the meantime, what will happen - as you know, the number of young offenders is on the increase?
Dr Moore: We agree that that is a problem in that the draft Bill states that, for example, a social worker can be responsible for either a reparation order or a community service order. However, we know that the social services and social workers are stretched, and it is not clear from the draft Bill, or the implementation plan, where the extra resources and training for workers will come from.
There must be emphasis on diversionary measures for children in the juvenile justice system if international standards are to be met, and the state has a duty to implement those rights for young people. It is incumbent upon the state to provide more money for resourcing that diversionary work. In turn, that will save money because custody is the most expensive part of the system.
Mrs E Bell: Committee members, as local representatives, often come across young people who have committed drugs offences - and those are not just minor offences. You said that you wanted the age at which young people are to be considered as juvenile to be raised. I will be happy to receive a written answer on that.
Mr Paisley Jnr: Are you familiar with the term "trainspotting"?
Prof Dickson: Yes.
Mr Paisley Jnr: How many of your objections are serious and how many would fall into the trainspotting mode? You made comments in paragraph 13 on "language". A vast amount of public money is lavished upon your organisation, and you come up with that. Are you serious?
Prof Dickson: Paragraph 13 is one of 43 paragraphs in the document. I am not for a moment pretending that it is the most important, but I have made the point that it is technically incorrect because Northern Ireland is not, as I understand it, a realm.
Mr Paisley Jnr: I do not suggest that Northern Ireland is, but perhaps it is an emphasis on language or semantics. Overall, would it be fair to say that you are more dissatisfied with the draft Bill than you are satisfied?
Prof Dickson: No. On balance, the commission is very pleased that the criminal justice system is being reformed in various ways. There is much very good material in the draft Bill, building upon what was in the report of March 2000. You can appreciate that for the purposes of today we have accentuated the negative aspects. We have drawn the Committee's attention to parts of the draft Bill that we are not totally happy with, but there is, nevertheless, a great deal in it that we approve of.
Mr Paisley Jnr: It is perhaps hard to quantify, but you are more satisfied than you are dissatisfied.
Prof Dickson: Yes, I think that is probably fair.
Mr Paisley Jnr: I would have thought that if there were a fundamental failure to address human rights in your words "centrally" that that would probably have thrown the whole draft Bill into some sort of disarray. But that does not seem to be the case.
Prof Dickson: Putting clauses that deal specifically with human rights into the draft Bill is going to make it more likely that the rest of it, including its very good provisions, will be applied in a way that keeps human rights in the forefront of the minds of those responsible for applying it. As the report in March 2000 emphasised, if the principles of human rights were placed up front in the aims and objectives of the different criminal justice agencies, it would then be more likely that when those agencies carried out their functions, as laid out in the draft Bill, they would comply with human rights standards.
Mr Paisley Jnr: So you think that the failure to address the issue centrally can be easily overcome.
Prof Dickson: By the insertion of extra clauses, yes.
Mr Paisley Jnr: Are you currently drafting proposed clauses?
Prof Dickson: We will be making recommendations in that regard.
Mr Paisley Jnr: You said that the draft Bill is cumbersome and convoluted in some areas. I am wondering if you also feel that parts of the draft Bill, with the exception of the human rights issues, which I think you have dealt with, are grossly incomplete. I am thinking in particular of the issue of community justice, where proposals do not appear to be thoroughly thought out. Have you had any opportunity to reflect on or look at the issue of restorative or community justice? Do you, for instance, intend to benchmark what is currently being proposed in the draft Bill against what has happened, and what is known practice, elsewhere?
Prof Dickson: If you are referring to clauses 53 to 57, then the answer is yes; we will be looking at those in more detail, and making suggestions for amendments.
Mr Paisley Jnr: On looking at the draft Bill so far, do you agree that the clauses which deal with restorative and community justice are incomplete?
Prof Dickson: Yes, we do.
Dr Moore: The clauses only deal with a part of the restorative measures that are currently in use in Northern Ireland. They only deal with the formal system. The Human Rights Commission needs to look at that again.
Mr Paisley Jnr: I suppose that that is what they are most competent to deal with; that is what the legislators intended. You seem to accept that it is incomplete in that area. Does the draft Bill not have a serious flaw in that regard?
Prof Dickson: Yes. It is one of many flaws in the draft Bill. At the same time, the fact that diversionary youth conferences and court-ordered youth conferences are provided for at all is a big plus in the scheme. It is one of the positive aspects of this draft Bill. We will be seeking to improve what is there.
Mr Paisley Jnr: I know that you are very interested in language. That is why I want to go back over it. You have said that it is one of many flaws. I asked if you agreed that it was a serious flaw. Do you understand the distinction I am making?
Prof Dickson: Yes. I am reluctant to say what is serious and what is not serious, but it is a flaw that needs to be addressed.
Mr Paisley Jnr: The draft Bill proposes fundamental changes to the system. In England and Wales, as you know, there were problems associated with the fundamental change that took place when the Crown Prosecution Service was created. Does the Human Rights Commission have any concerns that those mistakes might be replicated in Northern Ireland?
Prof Dickson: Yes, we would. The lessons learned in England have to be applied here. I know that the Northern Ireland Office is aware of the Glidewell report into the Crown Prosecution Service in England, and the difficulties that have been encountered between the barristers' profession and the Crown Prosecution Service there. I very much hope that the improvements made in England in recent years will be transferred to this jurisdiction.
Mr Paisley Jnr: I am glad that you mentioned the Glidewell report. Do you feel that the proposals outlined in that report have been successfully implemented?
Prof Dickson: I am sorry, Mr Paisley. The Human Rights Commission has not yet carried out a comparison of the Glidewell report's recommendations and the draft Bill, so I am not in a position to give you an answer today.
Mr Paisley Jnr: You made a very interesting reference to the Law Commission when you said that the draft Bill might invest too much power in the Secretary of State and later on, in the First Minister and the Deputy First Minister. I welcome your warning. Am I right to draw from your inferences that these clauses could over-politicise the criminal justice system?
Prof Dickson: There is always a danger that when a member of the Government has a large say in how an agency within the criminal justice system, or the justice system itself - because the Law Commission here will have jurisdiction over civil as well as criminal matters - works, the doctrine of separation of powers is breached. The Human Rights Commission is against that, and we want an agency like the Law Commission to be as independent as possible - as independent as the Human Rights Commission likes to be from Government.
Mr Paisley Jnr: Are you saying that as a result of that warning, the proposal is unsatisfactory because it does or could over-politicise the criminal justice system?
Prof Dickson: Yes. It would not be unfair to say that.
Mr Paisley Jnr: You have indicated that you will eventually have a view on clause 62, which deals with symbols. Does the Human Rights Commission accept that the rights of British people would be undermined if the symbols of the Crown, and symbols that they identify with and cherish, were to be removed?
Prof Dickson: As I said, we have not reached a final view on clause 62. The relevant international standards, of which there are few, suggest that places of justice should be neutral venues where everyone in society can feel comfortable. That will probably influence our ultimate view on clause 62.
Mr Paisley Jnr: The issue of neutrality is interesting. Would you, therefore, be opposed to recommendation 138, which recommends the use of the Irish language in courts?
Prof Dickson: We have not addressed that recommendation, and I do not believe that it is reflected in the draft Bill. I understood that we would be examining the draft Bill today, rather than the report of the criminal justice review body.
Mr Paisley Jnr: Do you have a view on that matter?
Prof Dickson: Our own bill of rights proposes that when people are interacting with public agencies, including the justice system, they should, if there is a need, be entitled to an interpreter, or to use their own language and have it translated for the benefit of others present.
Mr Paisley Jnr: Could a claim that there is such a need be mischievous? Would that need not have to be proved and demonstrated?
Prof Dickson: A ruling on what constitutes a genuine need would have to be made by a court, I presume.
Mr Paisley Jnr: When you are completing your consideration of clause 62, I would like you to apply the view that many regard those symbols to be neutral, because they reflect the state in this part of the realm - as you would put it - and that their removal would cause great offence. Perhaps, therefore, that should be reflected by the removal of those clauses.
Prof Dickson: We will certainly look at clause 62, and others.
Mr Campbell: I welcome the Human Rights Commission. You said that you have not yet considered comprehensively clause 62. When might you reach a considered view on that clause?
Prof Dickson: It will not be reached until very close to the 12 December deadline for submitting our report to the Northern Ireland Office. I would not like to promise that it would be made many days before that date.
Mr Campbell: You commented on, and responded to questions about, the lay members of the judicial appointments commission, and their "representativeness", as you termed it. You stated:
"We believe the so-called Nolan principles on appointments to public offices should apply, but that the principle of representativeness should be applied also."

How do you conclude that? I do not expect you to comment on the Human Rights Commission's unrepresentative make-up, given that you were not responsible for that. However, do you understand that a large swathe of Northern Ireland's Unionist community might regard the political institutions as being unacceptable? That community might also be unhappy if the membership of the judicial appointments commission were found by the review body to be unrepresentative.
Prof Dickson: I did not understand your question in full. The commission is merely emphasising what is already contained in clause 3(7) of the draft Bill, which is that when appointing persons to be lay members - [Interruption].
Mr Campbell: I am really asking what you define as representativeness.
Prof Dickson: Obviously, it is very difficult for a small group of people - be it five in the case of the lay members of the judicial appointments commission, or 13, as in the case of the Human Rights Commission - to be representative of 1·7 million people in Northern Ireland. One has to decide what aspects of representativeness need to be taken into account, and this is something that will need to be looked at by everyone involved in the operation of the justice system in Northern Ireland. Is it just the aspect of gender; religious background; political belief, or disability? What aspects of representativeness are to be borne in mind? It is a difficult question, and the Human Rights Commission has not yet reached a view on what the appropriate aspects would be.
Mr Campbell: My point is that representativeness, as you have defined it, is fine. However, if there is a very serious division in Northern Ireland about the institutions - some of which will come under the criminal justice review - it would be important that some semblance of recognition be given to people's views. That is a statement rather than a question. My final question is on clause 63 and it concerns the balance between prisoner releases and the information provided to victims. Can I assume that your concern is not to equalise the rights of victims and ex-prisoners?
Prof Dickson: Yes. We are not seeking to equalise rights. In operating the victims' information scheme, the need to protect the safety of ex-prisoners should be one factor taken into account when deciding what information should be given to victims.
Mr Campbell: I can understand that. I wondered why you had not made some reference to the need to protect the safety of victims from ex-prisoners.
Prof Dickson: That is taken for granted in the wording of clause 63, or can be implied from it.
The Chairperson: Thank you very much for your time this afternoon.
MINUTES OF EVIDENCE

Thursday 29 November 2001

Members present:

Mr Dalton (Chairperson)
Sir John Gorman
Mr J Kelly
Mr M McLaughlin
Mr Paisley Jnr

Witnesses:

Mr J Neill ) The Law Society of
Mr J Bailie ) Northern Ireland
The Chairperson: Welcome Mr Neill and Mr Bailie from the Law Society of Northern Ireland. Thank you for coming to give evidence to the Committee. Please make a brief opening statement to the Committee after which Committee members will ask questions.
Mr Neill: I am John Neill, the senior vice president of the Law Society of Northern Ireland and this is our chief executive, John Bailie. We broadly support the views that appear in the 'Review of the Criminal Justice System in Northern Ireland'. We have been heavily involved in the review at earlier stages, and our paperwork is on record.
We will help the Committee in any way we can. However, the consultation period is very short, and we have not had a chance to go into the matter in detail. Therefore we can only speak about broad strategic issues. We have not had the chance to go into the draft Bill in detail, but there is work in progress. We would like to think that there would be opportunities for continuing consultation as the issue develops - during the framing of the legislation and its detailed passage through Parliament.
We are targeted with bringing forward several specific areas in the implementation plan. We expect to return to those matters when we get into the nitty-gritty of the draft Bill.
As regards consultation, I am almost tempted to say that having a reasonable consultation period should be a human right, particularly given the resources of the range of consultees in Northern Ireland. We are part-timers, but that does not mean that we do not have to deal in full detail albeit on a limited scale with the principles that are at stake. We make the plea for a more reasonable consultation period.
The Secretary of State, in his introduction to the 'Review of the Criminal Justice System in Northern Ireland' states that the intention is that this matter would be the subject of devolution as soon as the next elections are held. We respectfully suggest that this issue should not be rushed. There is much at stake if the detail of the legislation is not right, or if the maturity of the political institutions, which this will be part of, are not solid. We must be careful.
Mr Bailie will speak on the broader issues that we, as lawyers, are competent to help the Committee with. There are many political issues involved in this, and it is not our function as a professional body to get involved in those. However, there are a number of professional and operational matters that we can assist the Committee with.
Mr Bailie: We are at a disadvantage because our work on the detail of the draft Bill and the recommendations in the 'Criminal Justice Review - Implementation Plan' is still work in progress. We have started to consider these matters, but we have not reached a conclusion on some of them.
It may be that with the Justice (Northern Ireland) Bill the devil will be in the detail; or the salvation will be in the small print. We have made representations to the criminal justice review group and it seems that our views were sympathetically received.
It might be helpful if I take the Committee through our submission. In paragraph 1.5 we have isolated and identified those parts of the 'Review of the Criminal Justice System in Northern Ireland' where we feel that we can add some value to the process from a professional practitioner standpoint. Part 2 of the review document deals with human rights and guiding principles. There is strong emphasis on the independence of the judiciary and the prosecution process throughout the review document and the Bill. Throughout the consultation period we were anxious to point out that the independence of the legal profession should be taken seriously. We will be arguing more overtly than at present for some kind of formal recognition of that principle when we go back to the Government. Paragraph 2.2 of our submission states:
"The existence of a genuinely independent legal profession is vital in the protection of human rights, not only in so far as this involves the framing of just laws and procedures but also in the robust and independent application and defence of those laws and procedures."
That principle will guide much of our response to the detail of the draft Bill. It has implications, for example, for the new relationship between the Law Society of Northern Ireland as a professional body and the proposed department of justice on the one hand and the office of the Lord Chief Justice on the other. In our earlier submissions we commented on the concept of a department of justice, and we wish to work through those details to ensure that nothing in those relationships will prejudice the independence of the solicitor in giving completely impartial advice to his client. It will preserve the solicitor/client relationship; keeping it free from political, financial or other influences that may affect its independence.
I cannot add much to what is in our submission about the prosecution process, other than to say that the society favoured the creation of a unified prosecution service. That seems to have been accepted and it will be delivered through this legislation.
Judicial appointments and training concerned us. Paragraph 4.1 of our submission neatly summarises our welcome for the review group's recommendations. We welcome the recommendations that relate to
"the modification of the current appointments criteria; the proposed removal of any unnecessary distinctions as between barristers and solicitors".
We also welcome the
"recommendations to provide for career progression within the judicial service; the proposal to place responsibility for judicial appointments with the Judicial Appointments Commission; and to provide for greater transparency and consistency in appointment procedures."
All of our earlier points seem to have been accepted. From our point of view one of the most gratifying aspects of the draft Bill is that solicitors and barristers are being put on an equal footing as regards judicial appointments.
We are still coming to terms with the clauses in the draft Bill that deal with the Attorney General and the head of the public prosecution service. At first blush, the creation of the post of advocate general indicates that there has been some acceptance of our views about the need for greater separation between the Attorney General's prosecution role - as head of the prosecution service - and his constitutional role. I do not propose to be an expert on this. However, it appears that the post of advocate general has been created to oversee basic constitutional rights on behalf of the Assembly, rather than the Executive.
Part VI of our submission deals with law reform and the establishment of a department of justice. We welcome the idea that there should be a more systematic means of reviewing civil and criminal law in Northern Ireland. The proposals state that a law commission will be created for that purpose, which will put Northern Ireland on the same level as Great Britain as far as law reform is concerned.
Part VII of our submission deals with miscellaneous issues. We would characterise those as matters in which we do not claim any special expertise, or that will only involve the legal profession indirectly. The Law Society of Northern Ireland is limiting itself to sounding warning notes and indicating a willingness to contribute constructively as those proposals are taken forward.
Mr Paisley Jnr: Committee members have been alarmed at the short consultation period allowed to us. It does the word "consultation" a disservice if enough time is not allocated. The Committee is working to resolve that issue. However, we do not hold out much hope of success.
Your submission welcomed the thoroughness of the work of the review group. Having studied the draft Bill, do you believe that what has been produced is thorough? Previous submissions have indicated concerns about incompleteness. If that is so, it must affect the ability of practitioners of your profession to carry out their work. Have you identified any areas where you would have problems due to incompleteness in the draft Bill?
Mr Bailie: We have not reached a stage during our scrutiny of the draft Bill where we have identified any lacunae in the detail. We have not identified any glaring omissions on any of the issues we touched on earlier, though we have yet to examine the finer details.
Mr Paisley Jnr: Views have been expressed that the section on restorative justice is incomplete, and that consideration of the workings of some of the new agencies is inadequate. Would you direct your research team to examine those issues so that you could come back to the Committee with a more detailed view?
Mr Bailie: We would be prepared to look at that. We have expressed a keen interest in restorative justice because there are many interesting opportunities inherent in the concept. Our submission is limited to stating that the system introduced should be properly integrated as part of the criminal justice system.
Mr Neill: I agree. Please do not hesitate to seek our help with any further consideration of the draft Bill. Help is also available from the Bar. Some magistrates have opinions on these matters, though I am not sure about the proprieties - whether it would be constitutionally appropriate for magistrates to make submissions. However, there is a lot of thinking on this topic.
Mr Paisley Jnr: Paragraph 2.2 of your submission indicates that a genuinely independent legal profession is vital. Do you feel that that the present legal profession is not independent?
Mr Bailie: No. The point is being highlighted in our submission because there is so much emphasis throughout the review document on the preservation of the independence of the judiciary in the new political dispensation, and the creation, as the argument would have it, of an independent prosecutorial structure.
We are saying that there is an independent legal profession, which performs a vital constitutional function. Given that we are in an era of constitutional change, the creation of a department of justice and the revised role of the Lord Chief Justice give rise to the need for us to consider where we fit into the new dispensation. We need to ensure that the new constitutional arrangements do not impinge on the independence of the legal profession. It is a question of preserving the independence, rather than creating it.
Mr Neill: Sometimes, though not in this case, there are suggestions that there should be Government appointed legal representatives. If that were to come forward, there would be an element of loss of independence.
Mr Paisley Jnr: I am glad that you answered the question in that way because I have concerns about this. Do you feel that the proposals help to preserve genuine independence, or could they be in danger of politicising your profession, which, of course, would be very damaging to it?
Mr Bailie: We are making this point because we see that there is a potential risk. We are not in a position to say that the proposals answer our fears and concerns. We anticipate that despite the short consultation process on the formal documents we can find ways of engaging with Government through the implementation process and the passage of legislation through Parliament. It will enable us to be aware of what is going on and to proof any detailed proposals against the principle of having an independent legal profession. It will also enable us to be engaged in a proactive, two-way, dialogue with them to ensure that these matters are kept to the forefront of their thinking.
To answer your question: where a department of justice is being created and where the role of the Lord Chancellor is being removed - as seems to be contemplated from the constitutional arrangements that are part of these proposals - important questions must be asked as to who makes decisions about the legal profession. Under the present constitutional arrangement, solicitors are officers of the court. For that reason, when it comes to matters arising within the Law Society that require to be appealed, the supervisory function is not carried out by a politician. It is in the hands of the Lord Chief Justice; and we would want to be clear that that is going to be preserved, or indeed, enhanced and reinforced.
The draft Bill contains a public statement about the independence of the judiciary. There is an opportunity to put a similar statement about the independence of the legal profession on the statute book also. We will be returning to the Government on this point as part of the consultation process.
Mr Paisley Jnr: That is a very helpful answer. I share your concern about the over-politicisation of the criminal justice system as a result of the draft Bill, intentional or otherwise. The effect could be catastrophic for the community's confidence in the delivery of fairness and justice.
Your previous answer addressed the issue of possible politicisation in the Attorney General's office. The Glidewell report, which looked at the running of the Crown Prosecution Service (CPS) in England and Wales after the reforms, identified several major problems with the new system. Have you examined those problems and identified, as an early warning to us, difficulties that could arise if some proposed measures are introduced without being properly thought through?
Mr Bailie: Neither Mr Neill nor myself practice criminal law, so we are at a disadvantage. However we do have the benefit of support from criminal legal practitioners who are not here today. If you trace the development of our thinking on this matter in our first submission, you can see that we began by raising questions about how any roll-out of the role of the Director of Public Prosecutions (DPP) into police prosecutions at local level should be carried out. We expressed concern that it should be done in such a way as to avoid the types of problems that were associated with the creation of the CPS in England. Our understanding was that those problems were largely due to resource issues. It is fairly well recognised that the CPS was launched without adequate preparation and resourcing and without ensuring that the infrastructure of lawyers was there to do the job and take over that role from the police. On publication of the report, which recommended that the full prosecutorial arrangements be spread across Northern Ireland and be taken away from the police, we stated in our supplementary submission that we were persuaded that that was the right way, in principle, to proceed.
You are correct in saying that, apart from resource implications and making sure that the transition is properly prepared for, there are issues at a more detailed level. I am not an expert, but I understand that there are issues around ensuring, for example, that the prosecution process does not become so centralised that there is not enough autonomy and discretion at local level to allow the system to work properly. The local solicitor must have access to a representative of the prosecution service, who can talk about a case and reach a sensible resolution. It is a question of getting the right balance between that degree of autonomy at local level - which is a good thing - and having a consistent approach that would require proper co-ordination from the centre. Mr Neill and I do not know enough about the structure to comment on it with any authority, but you drew attention to those issues, and we are aware of them.
Mr Paisley Jnr: The Law Society has been good at keeping us aware of resource problems as regards legal aid. If there is a fundamental change to the system, inadequate resourcing will overburden it and lead to more confusion. The Law Society must be concerned about that.
Mr Bailie: At various places in our submission we draw attention to the fact that there are various reviews underway in the legal aid area that are of interest to us. We have put forward some positive proposals for reform of the criminal legal aid cost system.
There is a separate strand of reform ongoing under the control of the Lord Chancellor, which the Law Society is actively engaged in. I am not sure how the timing of these matters will synchronise, but there are clearly important issues concerning the financing of the prosecutorial and defence sides. There are issues about the equality of arms between the prosecution and defence, which must be addressed.
Mr Neill: One fundamental policy that the Law Society wants to pursue is to ensure that there is a network of solicitors readily available in Northern Ireland. Many solicitors operate in small firms, and this allows local people to have confidence in, and comfort with, their local representatives. The Law Society does not want that network to be disturbed in any way by measures that would centralise matters and put pressure on the existing system.
Mr Paisley Jnr: There should be an important distinction between people in the centre and those on the outer reaches. I know, Mr Neill, that you did not want to consider the political issue, but I feel obliged to ask you whether the Law Society has any view on clause 62 that deals with symbols in court?
Mr Neill: No.
Mr Paisley Jnr: You are not making a statement on that matter as an organisation?
Mr Bailie: We do not feel competent to speak for solicitors on a corporate basis; they will have different perspectives on that matter. We do not feel that we have the authority to speak on those issues.
Mr J Kelly: The Committee shares your concern about the shortness of the consultation period. I have grouped my questions in order to save time.
The Northern Ireland Human Rights Commission expressed disappointment that human rights were not more central, as recommended by the review group. Do you agree with that viewpoint?
Paragraph 5.8 of your submission states that you continue to advocate a more comprehensive separation of roles to provide for three distinct officers/holders. Are you doing away with the DPP's office, or are you advocating the creation of three new posts?
Could something be included in the draft Bill to help people understand the independence of the legal profession? The murders of Rosemary Nelson and Patrick Finucane emphasise that it is important for people to understand the independence of the legal profession.
Mr Bailie: I will respond to the last point first, as it is most important. It is a point of strategic importance rather than one of detail.
The draft Bill begins with a statement about the principle of judicial independence. Primary legislation might not be the right place to explore fully the implications of that principle. However, I will use it as an analogy. The principle of judicial independence is stated, and there will be a huge amount of work to make sure that it is properly understood; that the implications are explained; and that the principle will be applied when policies are devised across a range of issues, for example, legal aid. It is most likely that we will favour a simple statement of principle. That would be the starting point for rolling out the practical applications of that principle in the context of these recommendations, or future policies, as well as policies that are not connected with criminal justice.
Mr Neill: Human rights is a major issue, to the extent that there is jurisprudence and legislation descending on us from Europe, the UK and in Northern Ireland through the proposed bill of rights. These issues will be dealt with under that umbrella and if any of this legislation flies in the face of human rights legislation there are mechanisms in place to challenge it. Over and above the nitty-gritty of what these acts are concerned with, there does not appear to be any human rights shortfall in this draft legislation. My answer might be vague but I am putting the matter into a broader context.
There is to be an office of the DPP; an intermediate office; and an attorney general. We are not clear about how, and on what principle, the segregation of the three functions will take place. We still have to study the detail, but we envisage the office of the DPP being operative.
Mr Bailie: I suspect that the perception of a deficiency in the area of human rights arose because a significant part of the review recommendations at the start of the report refer to a human rights ethos and the idea that human rights principles should underpin the whole criminal justice system. The Human Rights Commission may feel that that has not been adequately reflected in the legislation.
We must form a judgement on that matter because we were clear in our submission that we are in favour of what the review report said about the importance of a human rights ethos and of human rights principles underpinning the system. We need to review everything. I make that point because we talked earlier about the independence of the legal profession. Parts of the draft bill of rights published by the Commission are relevant to this principle. There are inter-relationship between this type of initiative and the proposed bill of rights for Northern Ireland.
Part of the bill of rights raises a question about whether people should have the right to instruct a solicitor of their choice. Obviously we would say that people should have that right, and that is connected to the question of the independence of the legal profession. The Law Society of Northern Ireland will have to reserve judgement on whether the combination of the legislation and the outcome of the bill of rights will adequately cover the affirmation of human rights principles, which is important.
There is a risk, in paragraph 5.8 of the submission, of terminology becoming confused. Our terminology does not necessarily correspond with that used in the draft Justice (Northern Ireland) Bill. The post identified in paragraph 5.8(a) of our submission is that of the DPP, although we have not used that term. The Attorney General's role is described in paragraph 5.8(b) of our submission, although it appears to have become the advocate general post within the structure. The Attorney General's post seems to be as described in paragraph 5.8(c). We have not quite come to grips with these posts yet.
Mr J Kelly: Will it be difficult for you to resolve your reservations given the short consultation period?
Mr Bailie: Yes. We will be very limited in what we can do by 12 December.
Mr McLaughlin: Despite the short consultation period, which we all complain about, do you intend to prepare a submission by the deadline? If so, your document would be very useful to the Committee. The Committee hopes to get Assembly support for an extended consultation period, which would enable us to intervene in the processing of the draft legislation. The deadline of 12 December is unreasonable and a longer consultation period would allow us to intervene at a strategic point during the Committee Stage of the Bill at Westminster. I note that you have offered to continue to work with interested bodies, including this Committee, to effect discussion on the draft Bill.
Mr Bailie: We will be submitting something by 12 December. As regards the broad, strategic issues, our paper will be at the level you have heard today, rather than a line-by-line analysis of the draft Bill and the recommendations of the criminal justice review. However, an extension by a month would enable us to provide a much better submission than we will be able to give.
Whilst I do not want to take away from the preference for a longer consultation process at this stage, we will be arguing for further opportunities to debate and consider this matter at local level. We would be very concerned that this might disappear to Westminster, go through the process and return without any further effective dialogue, or input, from Northern Ireland people. I trust that that is not the Government's intention.
If the Assembly is recommending that there should be an ongoing process of consultation as the matter progresses, we would support it. The more input there is, the better the product will be. It is in no-one's interest for this to be done too quickly, or without considering all points of view and all practical implications.
Mr Neill: We have not discussed this matter yet. New committees were set up at our annual general meeting on 28 November, so we have to get these off the ground. The replies that we receive are likely to indicate the desire to follow up with something more substantive. It would be helpful if there were something in the Committee's report, particularly if you are commenting on our submission, to suggest that there might be more to follow.
Mr McLaughlin: That would be mutually beneficial. I hesitate to get into detail because you made it clear that you are not in a position to offer the corporate view, and I understand that. Is it possible that you will address issues that are drawn directly from the Good Friday Agreement? I would like to see the mechanisms for addressing law reform, and the scope for structured co-operation between the criminal justice agencies on both parts of the island, being addressed.
Mr Bailie: We will consider those points.
Mr McLaughlin: I appreciate that you are not in a position to offer a formal response, but I would like to flag up those issues.
Mr Neill: We work within the British Isles, and we consult sensibly and pragmatically with other jurisdictions on matters on which it is sensible to co-operate. That is a general answer, and I cannot go any further than that. We are obviously interested in mechanisms of law reform, and we would certainly want an opportunity to influence those to everyone's advantage.
Mr McLaughlin: I am presenting this matter specifically in the context of the Government's position in relation to the draft legislation and the implementation plan. The Law Society has responded progressively to the debate, and I am sure that it would be conscious of the benefits of co-operation. However, has the Government, in their response to the debate, picked up on those two issues, which are specified in the Good Friday Agreement?
Mr Bailie: I could not comment any further.
Mr McLaughlin: I would not expect you to.
Sir John Gorman: "Justice delayed is justice denied", as the saying goes. My experience, after 15 years in the RUC, was that one was constantly trying to get over delay. I see you have a system of using prosecuting inspectors in summary cases, which seems to be working very well, according to your submission. However, it is likely to be opposed under the new system because of its alleged lack of transparency. Is it possible to adopt the Scottish scheme, where there are criteria for the process between committal and hearing, which require, at least, some explanation of what goes on?
Not a day passes but one sees the prosecution of crimes that were committed two, three or four years ago. No doubt there are other reasons for delays, such as a lack of success in the investigation. However, I am sure that many delays are caused by the inability of solicitors to arrange their timetables so that they can make an appearance at court. The more popular the solicitor, and the more he is reckoned to be a good advocate to get you off, the more likely it is that he will be unable to turn up. I cannot believe that that is still the case. I know that there have been attempts to try to get the Scottish type of programme, and I would like to believe that we could adopt an approach that would reduce delays. Are you working on that?
Mr Bailie: As you said, the question of delays in the criminal justice system, and analysis of the causes of delays, has been debated for as long as I have had a practising certificate. The Government are committed in principle to the idea of controlling the speed of the criminal justice process by introducing time limits. However, for various reasons, the specific details of which I cannot remember, the full statutory compulsory scheme has not been introduced in Northern Ireland as yet, despite the Government's signalled intention.
I am not an expert in this matter, and I stand to be corrected, but the major reason for not introducing statutory time limits has been due to difficulties in processing prosecution cases - not the readiness, or otherwise, of the defence side to meet the charges. Several criminal justice delay groups have been formed to look at the problem. All I can say is that solicitors have no interest in delaying criminal proceedings. In the spirit of constructive contribution to the debate, which, I hope, characterises our submission, there are mechanisms within the proposals for having greater inter-agency co-operation. We will contribute to that debate effectively and positively. I am not sure that I am competent to debate the detail of those mechanisms, beyond making a generalised observation.
Sir John Gorman: You devoted three pages of your submission to the subject, so it must exercise you?
Mr Bailie: It is also a subject on which our experienced criminal and legal aid practitioners can make much more of a contribution than I can.
The Chairperson: As regards the function of prosecuting inspectors and the move to a central prosecution service, you said that you thought it was important to have local offices with a degree of autonomy; the reason being that prosecuting inspectors can exercise a high degree of autonomy, particularly in reducing, or dispensing with, charges as part of the ongoing negotiation process. Would greater transparency in such a system, or even a move towards a system of transparent plea-bargaining, be more advantageous, rather than individuals having a degree of local autonomy that is not subject to any transparency?
Mr Bailie: If I say that I am not competent to deal with that, you will regard it as a cop-out, so I will make an attempt at an answer.
The Chairperson: Perhaps the criminal practitioner has answered that question already.
Mr Bailie: I will avoid answering the question on plea-bargaining. However, it is correct to say that our starting point was the degree of efficiency in the system, which led to the relationship that built up between local police inspectors and local solicitors. Frankly, returning to the point about delay, things developed more smoothly because of it, because relationships were built up over a period of time. That worked to the overall advantage of the system. Where that system is to be replaced with a unified prosecution service, which inevitably will have a central bias, important issues about transparency will arise.
I return to the point about striking a balance between the scope for local discussions and ensuring that that does not give rise to widespread variations in the standard of justice in one area against a neighbouring town or county. There will be a need, within the new structure, for a more transparent protocol, which the prosecutors will operate, that will lay down the boundaries for negotiation. That is bound to be beneficial and will be essential to the success of the system.
The question was asked earlier about what we will be saying by 12 December. Of all of the matters discussed today we are keenest to get across, as a preliminary point, that clause 1 of the draft Bill provides a guarantee of continued judicial independence. Our priority, in the short term, will be to argue for a statutory statement, a guarantee, of continued legal professional independence.
Mr J Kelly: What do you mean by a guarantee?
Sir John Gorman: I am confused too. Clause 1 provides a guarantee of continued judicial independence.
Mr McLaughlin: Mr Bailie is talking about the legal profession.
The Chairperson: Are you suggesting a similar statement in relation to the independence of the legal profession as a whole?
Mr Bailie: Absolutely.
The Chairperson: Would that include the Law Society and the Bar?
Mr Bailie: Yes. The importance of it would be that during any particular application, for example, the determination of Government policy, those responsible would have to have regard to the preservation of the independence of the legal profession. Whilst funding decisions are being made, or in relation to legislation being framed, anything that would impinge on legal professional independence would have to be scrutinised and weighed against that principle.
Mr J Kelly: Are you saying that has not been the case up to now?
Mr Bailie: That is why I said "continued legal professional independence".
The Chairperson: Thank you for your time and your presentation.
MINUTES OF EVIDENCE

Tuesday 4 December 2001

Members present:
Mr Dalton (Chairperson)
Mr Campbell
Mr J Kelly
Ms Lewsley
Mr A Maginness
Mr McNamee
Mr M Robinson

Witnesses:

Mr D Lavery )Northern Ireland Court Service
Mr T O'Reilly )Northern Ireland Court Service
Mr M McGuckin )Northern Ireland Office
Mr S Webb )Northern Ireland Office
Mr B White )Northern Ireland Office
The Chairperson: Mr Stephen Leach, who was to lead the witnesses' delegation, cannot attend due to the unfortunate death of his father. On behalf of the Committee, I extend our condolences to Mr Leach, and we shall send a letter to him to that effect.
Mr White: My name is Brian White and I am the head of the Criminal Justice Policy Division in the Northern Ireland Office (NIO). Stephen Webb is the head of the Criminal Justice Review Implementation Team. Mark McGuckin is the head of the Criminal Justice Services Division in the NIO. David Lavery is director of the Northern Ireland Court Service and Tommy O'Reilly is director of corporate services in the Northern Ireland Court Service.
The Chairperson: Thank you for attending. We shall hear your opening statement before opening up the discussion to the Committee members.
Mr White: We are sorry that Mr Stephen Leach has been unable to attend because of sad circumstances for him and his family.
I thank the Committee for its invitation to attend and I welcome the opportunity to assist in its deliberations on the Government's response to the criminal justice review. We are happy to clarify any points that relate to the draft Bill and the implementation plan. We also wish to hear members' views on points of policy in order to relay those Ministers after consultation.
I advise the Committee that one of our number, Mr Stephen Webb, has a commitment in London this evening and will have to leave the meeting at around 3.15pm. He is our resident expert through his involvement in the implementation of the review and is, therefore, a key witness on structural issues and prosecution.
On 12 November, Des Browne, the Northern Ireland Minister with responsibility for criminal justice matters, announced the publication of the Government's response to the review. At that time, he invited comments by 12 December and intended there to be a focused and proactive consultation. Extensive consultation had already been carried out on the review and the proposals set out in the draft legislation, and the implementation plan stuck closely to the review recommendations. Since then, as the Committee will be aware, Ministers have announced a four-week extension, to 7 January 2002, of the consultation period. In reaching that decision, Ministers were made aware of the representations received through your Committee Clerk and from other quarters. They concluded that to allow more time for consultation would contribute to our proposals' effectiveness. However, Ministers were also conscious that any further extension could jeopardise our prospects of achieving Royal Assent for the Justice (Northern Ireland) Bill by the summer, which is currently the aim.
Nevertheless, I stress that the principal focus during the formal consultation period is the draft Bill, rather than the implementation plan. Although we clearly welcome comments on the plan, consultation on it will not cease on 7 January; there will be opportunity for further discussion. We are committed to continuing dialogue with the Assembly, especially on policies or proposals that have implications for the devolved Administration. We intend to produce a revised implementation plan after the legislation receives Royal Assent.
The Bill is the main delivery mechanism for the recommendations set out in the Criminal Justice Review Group report, 'Review of the Criminal Justice System in Northern Ireland'. The review group was set up on 27 June 1998 and tasked with undertaking a wide ranging review of criminal justice, other than policing, and those aspects of the system that relate to emergency legislation. It reported in March 2000, making 294 recommendations for change across the criminal justice system. A period of consultation followed, before the Government announced their broad endorsement of the report, and before they undertook to develop draft legislation and an implementation plan. Therefore, the draft legislation and the plan are the Government's response to a lengthy consultation period. Taken together, they make it clear that the Government accept the vast majority of recommendations; indeed, none of the recommendations has been specifically rejected by Ministers.
When Des Browne made his announcement on 12 November, he emphasised that any system of justice needed to be reviewed regularly if it was to meet the public's expectations and make people feel safer in their localities. As well as being a cornerstone of the Belfast Agreement, he saw the implementation of the criminal justice review as having the potential to deliver a modern, progressive system of justice for all the people of Northern Ireland. The system will retain the best of the old, and bring in international best practice and concepts, to ensure that services are delivered in a fairer, more effective and accountable way in the future. Mr Browne also set out the Government's target to devolve policing and justice to the local Administration, and he explained how the review will help to pave the way for the devolution of those functions.
The legislation applies only to Northern Ireland, aside from a purely technical point pertaining to the renaming of resident magistrates, and it deals with matters currently in the reserved and excepted fields, as defined by schedules 2 and 3 to the Northern Ireland Act 1998. The policy areas covered by the draft Bill are currently the responsibility of the Lord Chancellor and the Attorney-General, as well as the Secretary of State for Northern Ireland. Officials from all three Departments have worked together closely to prepare the legislation, and the Attorney-General and Lord Chancellor have been kept closely in touch with the provisions of the draft Bill and the implementation plan.
The main provisions of the draft Bill are: to amend the law relating to the judiciary, law officers and courts in Northern Ireland; to establish a public prosecution service (PPS), a chief inspector of criminal justice and a Northern Ireland law commission; to set out the aims of the youth justice system and to make other provisions dealing with that system, including the setting up of a system of youth conferencing; to provide for the disclosure of information about the release of offenders in Northern Ireland to victims of crime and to confer on victims the right to make representations in relation to the temporary release of offenders; and to provide community safety measures.
We shall continue to consult with the Committee on the implementation plan as we develop our proposals. The plan sets out the action that will be taken on each of the review's 294 recommendations, who will be responsible for it, and the timescale for that action. In many cases, delivery will be achieved through the draft Bill, although some recommendations will be dealt with administratively. The NIO will have overall responsibility for driving forward the implementation. An additional provision of around £40 million has been allocated for the implementation of the review in the three years covered by the spending review 2000 (SR2000). The NIO and the Northern Ireland Court Service will incur that expenditure. The rate at which expenditure is incurred in future will depend on when the various parts of the legislation are commenced. A major area of expenditure will be in the development of a single, decentralised, independent prosecution service. That will build on the current responsibilities and work of the department of the Director of Public Prosecutions (DPP). The creation of a new public prosecution service (PPS) will require the recruitment of significant numbers of additional staff, and it is anticipated that the existing department of the DPP will double in size.
Other changes in the draft Bill will involve the movement of staff within the public sector. There will also be several corresponding savings arising from the review. For example, savings will be made in the policing budget when the police cease to exercise their prosecution function.
We look forward to taking questions and listening to the Committee's views. I ensure that any points raised will be brought to the attention of Ministers.
The Chairperson: Thank you. The implementation plan states that the Government intend to devolve responsibility for policing and justice functions to Northern Ireland. The target date for that is after the Assembly elections, which are scheduled for May 2003. However, it does not give a commitment as to how soon after those elections that that would occur. It states that the final decision
"can only be taken at the time taking account of security and other relevant considerations".
What other relevant considerations will you take into account? Is there a set list of criteria that the Government will apply to decide when to devolve those functions?
Mr Webb: There is not a set list of criteria. Given the wide range of factors that must be taken into account, we could not give a more specific undertaking or target than we have already done. The Government feel that, as well as the security situation, cross-community support is required in order for devolution to happen. To move anything from the reserved field to the transferred field requires a cross-community vote in the Assembly. That would require the Secretary of State, the NIO and the devolved institutions to liaise to see whether those in the devolved institutions felt that they were ready. The wider political situation will also be a factor.
The Chairperson: Is it not simply that the Government would seek to fulfil their necessary logistical concerns in order to effect devolution as soon as practical after that date? Is it correct that there are set criteria or standards that would need to be met before the Government would decide to begin that process?
Mr Webb: We must satisfy the logistical concerns to make it possible at all, but there must be a wider judgement beyond that. Both sides need to support devolution at that time.
Mr Campbell: Northern Ireland is part of the United Kingdom. How would symbols that may be considered for Northern Ireland's courts appear in the rest of the United Kingdom?
Mr Lavery: The practice is slightly inconsistent at present. For example, not all our courthouses display a royal coat of arms. However, where a symbol is displayed at a courthouse in Northern Ireland, it has traditionally been the royal coat of arms, which symbolises the Queen's justice. That would similarly be the practice in England and Scotland.
The review report does not suggest that we choose an alternative symbol. Rather, it suggests that to display the royal coat of arms on existing courthouses might continue to be appropriate. However, the principal change that it recommends is that, in order to create a comfortable environment for those who use the courts, those courtrooms that currently display the coat of arms would no longer do so. The greater number of our courtrooms display it, although there are exceptions, family courts being one such example. It is not intended that any new symbol would be introduced. Symbols would simply be removed from the interior of existing court buildings, the exterior would continue to display the coat of arms. I may not have captured the overall thrust of your concern.
Mr Campbell: I shall not go into the use of the word "simply" in relation to the removal of symbols.
In his opening remarks, Mr White mentioned the periodic reviews of the justice system that will occur. In Scotland and Wales, for example, depending on the views of a generation, there may be a rising tide of Nationalist opinion in both regions. Is it correct that those regions have not voted on symbols?
Mr Lavery: That is my understanding of the present situation. It is more likely that any changes will be in Scotland, where responsibility for justice issues has already been devolved to the Scottish Parliament. The situation in Wales is somewhat distinct and different. I am not aware of any proposals from the Justice Department in Scotland pertaining to the display of symbols. However, that may be a matter that, presumably in time, the Scottish Parliament may wish to reconsider. If the proposed devolution of similar responsibility occurs here, the Assembly may also wish to make changes. I am not aware of any material change in Scotland since devolution.
Mr Campbell: Whatever the political developments within Nationalism in Scotland, they have not yet led to the removal - simple or otherwise - of the current symbols of justice.
Mr Lavery: The Scottish court system has its own distinctive characteristics, but they have existed for longer. As far as the principal thrust of your question is concerned, there has been no change in symbols. In the interests of consistency, on checking the Official Report, we shall write to the Clerk to correct any inaccuracies.
Mr A Maginness: In page 39 of the implementation plan, which discusses recommendation 68 on the merit principle, the conclusion reads:
"The Government fully endorses the principle of appointment on merit and has reaffirmed it in the Bill."

Is there any suggestion that appointments in this jurisdiction may be made on grounds other than merit?
Mr O'Reilly: That is not the case. The principle, which will become part of the Bill, reaffirms the independence of the judiciary and the process for appointing members of the judiciary. We wish to ensure that the Bill makes quite clear that appointments will continue to be made on merit. However, that is not to say that the Government do not recognise other issues that were highlighted in the review to ensure that the judiciary is representative and more reflective of the community from which it is drawn.
There are other measures in the implementation plan that the Government wish to see introduced through the criminal justice review to ensure that that happens. However, the overriding principle will remain appointment on merit.
Mr A Maginness: That is a helpful answer, as it brings me to recommendation 69, which states that
"It should be a stated objective of whoever is responsible for appointments to engage in a programme of action to secure the development of a judiciary that is as reflective of Northern Ireland society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit."

Am I right to say that, although that is a stated objective, it will not form part of the Bill?
Mr O'Reilly: That is correct; the requirement that the judiciary will reflect Northern Ireland society will not be part of the statute. However, if we decide that the merit principle is the key principle. The Government do not believe in the use of quotas, but they do wish to put an affirmative action programme in place. As set out in the review, one measure is the early appointment of a judicial appointments commissioner for Northern Ireland. That person will be responsible for taking forward the actions in the implementation plan to ensure that people from the community do not feel they are barred from applying. We wish to encourage as wide an applicant pool as possible for all judicial appointments.
Mr A Maginness: I understand and approve of the merit principle, as does my party. That is embodied in statute, but I do not understand why the reflective principle will not be embodied in statute. Why was a distinction made between the two?
Mr O'Reilly: We wish to protect judicial independence through statute. That is set out in the draft Bill through a declaration for judicial independence and the need for cross-community support, as well as the appointment of a commissioner. Those are the key principles, and they reflect the recommendations that will be implemented through the Bill. The intention was not to set a quota for the number of and composition of the judiciary in Northern Ireland. That principle is not accepted in any other aspect of Northern Ireland society, with the exception of the Police Service of Northern Ireland (PSNI). Probation is not in statute in any other area. The Government wish to see both the judicial appointments commissioner and the judicial appointments commission (JAC) implement a programme of action to ensure that the judiciary, by the nature of its appointments process, reflects the community.
Mr A Maginness: I understand that, but I am still not satisfied as to why the reflective principle is not embodied in the Bill. I am not talking about quotas or the mechanism that would be used; I am talking about the reflective principle. If Government go to the bother of incorporating the merit principle into the Bill, which is something that the Committee would accept, why do they, given Northern Ireland's specific circumstances, not go to the bother of putting a reflective principle into the statute?
Mr O'Reilly: Recommendation 69 states that it should be an objective of those who have responsibility for appointments. The review does not recommend that it should be included in the statute. It sets it out as an organisational aspiration of the Bill, and that is why it is included in the implementation plan and not in the statute.
Mr A Maginness: The JAC will not be set up until after devolution. Is there any reason why it could not be set up before then?
Mr O'Reilly: The JAC will deal with judicial appointments. Those are excepted matters and, in the review, it was recommended that that should only occur upon devolution. Therefore, it will only become the Northern Ireland Assembly's responsibility on that date.
Mr A Maginness: It might be an excepted matter, and may become a devolved matter. However, there may be no cross-community agreement to devolve that power to the Assembly. We could wait, not only for 18 months but perhaps for five-and-a-half years for that to come about. In the meantime, we have neither a JAC nor the necessary element of reform in the system. We could be waiting indefinitely for the JAC to come into being
Mr Lavery: I shall supplement Mr O'Reilly's comments. It is not as if nothing is going to happen. I wish to emphasise that the appointment of a commissioner for judicial appointments is imminent. The criminal justice review report suggested that, pending devolution of responsibility for judicial appointments, someone with responsibility to oversee judicial appointment procedures should be put in place as quickly as possible. That is in line with the recommendations that were made in respect of an oversight mechanism in England and Wales.
The appointment of a commissioner for judicial appointments will supplement the administrative work that we are already doing through the establishment of a judicial appointments unit that is separate from the Court Service, in order to support the commissioner. A judicial appointments unit would allow it to take forward the programme of work anticipated in the chapter in the implementation plan on lay involvement in adjudication. That work includes broadening the pool of candidates from which judicial appointments are made.
Mr A Maginness: That is very helpful. However, the idea that we have to wait until devolution for the JAC to be set up is ill conceived. A commission could be appointed, because there is no political element flowing from the Assembly. It is a matter of appointing the judges, the lay people, and members of the solicitors and barristers profession to it. There is no reason why a commission could not be set up under the aegis of the Lord Chancellor's office. It could be put in place and taken over by the devolved Administration. I do not understand why we cannot proceed with this mechanism now, or as soon as possible after the Bill has become law.
Mr Lavery: It would be fair to say that it is fundamentally embedded into the existing constitutional arrangement. Appointments are currently made on the recommendation of the Lord Chancellor. I return to my colleague's earlier remark about the excepted nature of those appointments.
Without appearing facile, if one had the commission, one would have a queue of people offering advice on appointments. The commission would be advising the Lord Chancellor because, under the current constitutional framework, responsibility for recommending appointments to the Queen lies with the Lord Chancellor.
I assume, therefore, that the thinking behind the recommendation in the review report was that the establishment of the commission should be achieved in the context of the constitutional reassignment of functions. In the meantime, there would not be a do-nothing option. The five-year wait that you mentioned would not occur. We would be optimistic that we could make good progress through the appointment of an independent commissioner for appointments. It is also important to note that he or she will have oversight, not only of appointments to the judiciary but to the status of senior counsel, which is a distinctive category of appointment.
Mr A Maginness: Is it not the case that the Lord Chief Justice in Northern Ireland advises the Lord Chancellor about appointments and other matters? If so, is it not preferable for him to receive advice from a body that has been established specifically to appoint judges, and to act on that advice in the meantime?
Mr Lavery: The Lord Chancellor's advice to the sovereign on judicial appointments reflects soundings and other advice taken from, for example, the Lord Chief Justice as head of the judiciary, the chairman of the Bar Council, the President of the Law Society et cetera. The nature of the JAC, as proposed by the NIO's 'Criminal Justice Review Implementation Plan', is distinct from that. That body would also carry out soundings and take advice. As a result of the fundamental characteristic of the new appointment mechanism, it was felt that constitutional principles would be violated if a JAC were established before the devolution of responsibility from the Lord Chancellor to the First Minister and the Deputy First Minister. There is a contrary school of thought to that, and you are articulating that.
Mr McNamee: I do not wish to repeat a point that has already probably been well made, but I am concerned about consultation time. The time given for consultation on the criminal justice review and the timescale for the Bill's implementation are important. Many parties may welcome the devolution of policing and justice to the North, but we want to be prepared for that and make it effective when it happens.
You were asked about what will happen one month, one year or two years after the Assembly elections in May 2003. Sufficient time and resources should be provided to enable the creation of the proposed new department of justice. It would be better for us to take things slowly and do them properly, rather than find ourselves with a devolved criminal justice system that is inefficient and possibly ineffective.
It is proposed that the royal coat of arms will continue to be displayed outside court buildings. Is that proposal compatible with section 75 of the Northern Ireland Act 1998, the Human Rights Act 1998 and the Fair Employment (Northern Ireland) Act 1989 if a neutral work place is to be created in which people are not be discriminated against because of their political opinions? That question is also important given the history of alienation of one section of the community from those Government buildings and institutions.
I am also interested in the recommendation to rename the department of the DPP the public prosecution service (PPS). At what stage does the NIO anticipate that the PPS will provide prosecutorial advice? When would the PPS state whether it intended to proceed with a prosecution, and what reasons would be given for proceeding or not proceeding? What evidence would be disclosed at that stage to justify that decision?
Mr Lavery: It is clear that the review group, including its external advisors, arrived at what could be described as a compromise over the display of symbols. The review group's report made it clear that the removal of the coat of arms from the interior of courtrooms might be beneficial in creating an environment in which people who come into contact with courts would feel comfortable. That led to the recommendation for the removal of the coat of arms. At the same time, the group acknowledged that the continued display of the coat of arms on the exterior of court buildings was appropriate.
It is not for me to get below the surface of what is said in the evidence as published. However, it seems that that was an attempt to balance the symbolic significance of the justice system that operates in Northern Ireland, and under which there are a number of fundamental principles of justice deriving from the sovereign, while creating what it described as a comfortable environment in the courtrooms. As regards complying with human rights requirements, the responsible Minister is required to consider that factor. One must assume that that has been done.
We have undertaken a robust equality impact assessment on the implications of the change in policy regarding the display of symbols. The outcome of that assessment and on several other issues has been published recently. If that has not been brought to the attention of the Committee already, we shall ensure that copies are sent to members. We examined the specific issue of what impact the review group's recommendations on symbols would have on the various communities in Northern Ireland. It may assist the Committee to see the published equality impact assessment on that and on several other issues.
Mr White: Sadly, the expert on prosecution matters, Mr Webb, has had to leave. The legislation gives a new responsibility to the prosecution service. However, the detail of the actual passage of individual cases needs to be worked out as part of protocols developed with the PSNI.
Mr McNamee: The concern has been that prosecutions have not been proceeded with and that there has not been any transparency about how decisions were delivered. The DPP made decisions not to prosecute and the reasons were not given. In some circumstances, there have been concerns about why some prosecutions have proceeded.
Mr White: The implementation plan makes it clear that this is a complex area. It is difficult to strike a balance between the interests of victims and witnesses, on the one hand, and concerns about the reputation and possible injustices to individuals who may have been accused of offences. That is a difficult area. The implementation plan mentions the need for further development in the light of changing legal advice and developments in the law.
Mr J Kelly: Mr Maginness spoke about the appointment of judges to the JAC. It will comprise six judges, two lawyers and five lay members. The draft Bill requires the lay members, but not the JAC as a whole, to be representative of the community. Should the JAC be representative of the community? Should judges be involved in recommending appointments? Is their experience and knowledge invaluable in that area? Is it appropriate for the First and the Deputy Ministers to be involved in the appointment process?
Would the replacement of the Juvenile Justice Board and the probation service with Next Steps agencies benefit users of the criminal justice system, and if so, in what way? Would that action anticipate a fusion of the probation, prison and juvenile justice services, as a development of the criminal justice review report recommendations that an overarching advisory board be established?
How effective is the youth conferencing system in the north of Ireland in achieving restorative justice? What procedures or guidance should the PPS or the courts provide on when to apply restorative justice rather than a conventional sentence? Should the conferring system be available regardless of the offender's age?
Mr Lavery: The judiciary is not intended to be representative of any sector of the community. That is why the review report uses a different term. It speaks of an aspiration or expectation that the judiciary be more fully reflective of the community. There are international examples of attempts to explicitly make appointments that are acknowledged to be representative of different groups in the community. However, such attempts gave rise to difficulties. The explanation is that, although it is appropriate that it be a statutory requirement to make every effort to select lay members of the JAC who fully represent of the community, it is not appropriate to use that same method to select members of the judiciary. I do not know whether you find that argument convincing.
The involvement of the judiciary in the JAC would be different from that of the lay members. The six judges are deliberately chosen from each rung of the judicial ladder, from the lay magistrate to the Lord Chief Justice. Whether the lay magistrate should be considered as a member of the judiciary or as a lay person is an interesting question. The position of lay magistrate is in a different category from the rest of the judiciary because the person who holds that position is not a professional lawyer, but a lay person appointed to the lay magistracy.
The constitutional change will be that the lead ministerial responsibility to recommend senior appointments will be transferred from the Lord Chancellor to the First and Deputy First Ministers, not to a justice minister, if we had such a figure. The intention, I imagine, would be to emphasise the non-political nature of the appointments. It is also important to acknowledge that the model for judicial appointments is that the First and Deputy First Ministers would act on the recommendation of the JAC.
In the Republic of Ireland, the Judicial Appointments Advisory Board produces a list from which the Minister makes an appointment. The review recommends a different model. The JAC would conduct the interviews, make the selection and the recommendation; it would then fall to the First and Deputy First Ministers to proceed with the appointment or to refer it back. That is probably a better and less political model.
The net outcome of all those changes will be to produce appointments that are more open and accountable. Such a system would enhance public confidence. That is not, of course, to suggest that past appointments were anything other than entirely satisfactory. However, the greater openness and transparency is believed to be beneficial.
Mr J Kelly: You clearly believe that the First and Deputy First Ministers should have a role. Will you explain the difference between "representative" and "reflective"?
Mr Lavery: No one appoints a judge, or has suggested that it would be right to appoint a judge, for a vacancy because the candidate had a particular background, because he or she belonged to a particular ethnic group or because of his or her gender. That would inevitably lead to headcounts and would influence how one assigned judges to deal with cases. How could one create a balanced Court of Appeal of three members?
Instead, the intention is that one should select people of ability and of proven legal experience whose merits make them the best candidates to fill a vacancy. Factors such as community background, ethnicity or gender should not be material. At the same time, the objective is to develop a wider pool of candidates from which selections can be made. There was a time when most appointees tended to be men. There was a good balance of community backgrounds, but it was a predominantly male profession and, therefore, a predominantly male judiciary. Every effort is being made by the professional bodies, the universities and other agencies to ensure that we have a much broader pool of talent from which to make appointments. However, when it comes to appointing a candidate to the judiciary, the principle that we wish to defend is the one espoused in the Northern Ireland Act 1998 and in the 'Criminal Justice Review Implementation Plan'. That merit must be the determining factor.
Mr J Kelly: When the American Supreme Court appointed an African American there was a question of whether that person was "representative" rather than "reflective". The matter was left, I felt, to his integrity.
Mr O'Reilly: The implementation review recommends what is good practice throughout Europe - that the judiciary have a role in appointments. The review sought to balance that.
It has been suggested that the legal profession and lay members should be involved. Therefore, we structured the commission to achieve a balanced representation of the judiciary system through all the tiers and lay members. It is important that the judiciary play a strong role in the commission and the appointments panels, which will include one appointed member of a judicial tier plus a lay member. That will be included in the procedures on appointments.
Mr McGuckin: The criminal justice review recommended that the Probation Board for Northern Ireland (PBNI) should be reconstituted as a Next Steps agency for the devolution of criminal justice issues and functions. The implementation plan suggested that it should be left to the Assembly to decide how best to deliver probation functions once devolution takes place.
The recommendation in the review relating to an overarching board recognises that prison, probation and juvenile justice services carry out similar functions, although they deal with different aspects. In many cases they deal with the same type of people and issues. Therefore there is scope to improve the co-ordination of activities among those organisations and achieving a greater understanding of the connections between those organisations and the individuals with which they deal. An overarching board would provide an opportunity to achieve that. It would not be intended to create a fusion of the agencies.
Mr White: The Committee asked some questions on restorative justice. The first concerned the effectiveness of youth conferencing. The model closest to our proposals is a system of family group conferencing in New Zealand. That has been effective in the majority of cases, which is not to say that it is a panacea. There are no perfect solutions in that area.
The Committee asked how a youth conferencing Order might balance against other methods of sentencing. That is a difficult question to answer, because the proposed youth conferencing Order is an entirely new concept, so it will take time for people to feel comfortable with it. Nevertheless, it will be available alongside other disposals. The most important point is that the great majority of juvenile justice cases will have a process of conferencing, where a group of people will engage with the offender to address the offence, as well as matters associated with offending. It is a powerful mechanism, and it should produce a powerful Order, which will be there to put matters right. However, it will exist alongside other available disposals, and some offences may be so serious that it will be necessary to set a lasting example.
The final point regarded a further extension. Did you mean an extension to people of other ages?
Mr J Kelly: Yes. Should conferencing be available regardless of the offender's age? How might a community restorative justice scheme be regulated in order to ensure that justice is done?
Mr White: The proposals in the implementation plan concern juvenile offenders. The review and the implementation plan discuss the possibility of extending those proposals to introduce some restorative elements into the adult system. However, that issue will be dealt with further down the line. Both documents already deal with the central value of community justice schemes, subject to certain protocols and overall accreditation.
Mr A Maginness: Is the Northern Ireland judiciary representative of Northern Ireland society?
Mr Campbell: Is any judiciary?
Mr Lavery: "Yes" would be a cautious and appropriate response, broadly speaking.
Mr A Maginness: Is there a serious distinction between a representative judiciary and a reflective one? You have said that it is broadly representative - that is the argument that is being put forward.
Mr Lavery: It is a deliberate use of language to avoid the notion of headcounts, which is a concept that the community may find repugnant. However, the language is also meant to emphasise the desire to have a judiciary that is recognisably drawn from the community that it serves. In this day and age, for all judges to be white and male would suggest an element of remoteness or unrepresentativeness. We could spend an afternoon talking about the subtle distinctions between the words "representative" and "reflective". However, we are trying to avoid a crude numerical headcount or quota system. We shall strive to secure a judiciary that is drawn from the community and reflective of it. A judiciary that reflects the community is likely to be representative of it.
Mr A Maginness: I agree that we should not indulge in headcounts, but clause 3(7) of the Bill refers to lay members being representative of the community in Northern Ireland. Is that not contradicted by the absence from the statute of a criterion that states that any representation should be reflective of society? That criterion should be included. Although it has to follow the programme, the JAC could decide that, because the programme is not statute-based, it can determine its own policies. Would it not be safer to have that criterion enshrined in statute in the same way the selection of lay members has been?
Mr Lavery: As far as the issue of lay members is concerned, the Bill is clearly modelled on the equivalent provision in the 1998 Act, which informs the appointments to the Human Rights Commission et cetera. That is especially necessary where appointments would otherwise be at large. Therefore clear guidance is given to the appointing authority. You have argued strongly that the principle of a reflective judiciary should be given statutory expression. We are certainly listening. The Bill does not explicitly address that concept, yet it is consistent with the report's recommendations. We shall reflect on members' observations.
I would hope and expect the JAC to take its guiding principles from those set down in the review report, given that those principles have their derivation in the Good Friday Agreement. I would not be indifferent to what it says in both documents about the overall objectives. I also fully expect the First Minister and the Deputy First Minister to pay close attention to those objectives and principles when they receive the JAC's recommendations for judicial appointments. Whether the legislative scheme would be stronger and better for having the principle of a reflective judiciary written into clause 3, or elsewhere, needs to be considered.
The Chairperson: A concern has been expressed at several Committee sessions about the establishment of a single public prosecution service (PPS). The concern is over whether that body would be properly resourced, financed and staffed to ensure that the mistakes made in setting up the Crown Prosecution Service (CPS) - especially those concerns highlighted in the Glidewell report - are not repeated. Has a PPS been fully costed and have exact staffing requirements been set out? How will such action be undertaken and is it possible to provide the Committee with the information?
Mr White: I cannot fully answer that question, as it is not my area. You can rest assured that we are aware of the lessons learnt in developing a prosecution service across the water. The need to ensure that it is properly resourced has been pointed out to us on a number of occasions, even before the criminal justice review completed its report.
The Chairperson: Thank you for attending.
Mr White: Thank you for listening to us, and for giving us the opportunity to speak.
MINUTES OF EVIDENCE

Tuesday 4 December 2001

Members present:

Mr Dalton (Chairperson)
Ms E Bell (Deputy Chairperson)
Mr Campbell
Mr J Kelly
Mr A Maginness
Mr McNamee

Witnesses:

Ms M Beirne ) Committee on the
Mr P Mageean ) Administration of Justice
Mr M O'Brien )
Mr O'Brien: As Director of the Committee on the Administration of Justice (CAJ), I want to thank the Ad Hoc Committee on the Criminal Justice Review for the opportunity to discuss the criminal justice legislation and implementation plan. We were concerned about the short time frame that the Government had originally provided for consultation on that matter. We understand that an extension has been given and that this is, in no small measure, due to efforts made by Members of the Assembly. We commend Members for that. We are pleased that the Committee and the Assembly are taking note of these measures and examining them in detail.
I would like to outline the work that we have done in relation to the criminal justice review. The CAJ made a detailed submission to the review, met with the review team, and provided two supplementary submissions. We were concerned from the outset that it was not an independent review but was led by the criminal justice division of the Northern Ireland Office, albeit with the assistance of some independent members.
The CAJ fully engaged in the review process. We were pleased to have been able to bring to Northern Ireland - in conjunction with the Queen's University of Belfast and the International Commission of Jurists - some prominent practitioners within the criminal justice systems of several other jurisdictions. They came to Northern Ireland and spoke to members of the review group about judicial appointment mechanisms and prosecution mechanisms in other countries, for example both in the Commonwealth and elsewhere.
In the wake of the publication of the review we submitted a detailed response to it. In our opinion, the draft legislation and implementation plan fail to take account of any of the observations that we made in that response. We have several general concerns, and some specific ones, about the approach that is being taken.
Around 300 recommendations are dealt with in the plan. There are very few deadlines for their implementation, and it appears that there are no clear targets in relation to the process. We are conscious that the recommendations are parcelled out to a large number of bodies within the criminal justice system; for example, the legal profession, the judges, and the court service. The CAJ is concerned that the lack of deadlines and targets, combined with the large number of actors involved and the absence of any clearly identified co-ordinating or supervisory body for the implementation of those mechanisms, could lead to a long, drawn-out process in which many of the recommendations fail to see the light of day.
We were also concerned that several of the recommendations are contingent upon the introduction of devolution of criminal justice matters. We are not convinced that some of those measures should have to await the devolution of criminal justice matters. Regarding the judicial appointments commission (JAC), we believe that if there is a need for a more transparent mechanism to appoint judges it should be brought about sooner rather than later.
Those are our general points. Particular points regarding our field of expertise are in relation to the section in the review on human rights and guiding principles, the section on the prosecution service, the section on the judiciary, the section on the courts, and the implications for equality.
We apologise that we were unable to provide a more detailed comment in advance, and that you have only just received a short note from us. Our submissions to the review and our response to the initial review could be made available to members if that was felt to be useful. Our comments on the draft Bill and implementation plan will be fed in when completed, and those too could be made available to members.
Mr Dalton: You have stated that many of the recommendations are contingent upon devolution and that that is a problem, as is the absence of clear targets for implementation of certain arrangements. Would it be helpful if a clear target date were set for devolution to take place - subject to the requirement of the Northern Ireland Act 1998 for cross-community support?
Mr O'Brien: Generally, we would take that view. Whether it would satisfy our concern would depend on the proximity of the date. If a date in the near future were set, several of the changes would come into play. If it were decided that devolution of justice functions is to be on the long finger, some matters would have to wait. However, clarification of a date would be welcome.
Mr J Kelly: Thank you for your presentation. You might have heard the tail end of our debate on the ideal outcome of judicial appointments. You used the term "to ensure his appointment was reflective of the community". We were debating the terms "representative" and "reflective". Which are we talking about? My view would lean towards "representative". Are we talking about the same thing, or is it about semantics?
Mr Mageean: It is to some extent a matter of semantics. We want to see a Bench that either reflects or represents the composition of the community in Northern Ireland in respect of gender, religious background and political outlook etcetera. The use of the word "reflective" in the review was primarily an attempt to ensure that appointed judges were not in any way seen to represent the interests of a particular community. Concerning gender, for example, the Bench is clearly not representative or reflective of the community at the moment. That problem continues. No members on the Bench are from ethnic minorities. The review recommended that the judicial appointments commission should, as soon as possible, set up a Bench that does reflect the composition of the Northern Ireland community, and we want to see that. The debate about "reflective" or "representative" is largely a play on words, as was indicated earlier by a representative of the Northern Ireland Court Service.
Mr J Kelly: That may be so, but are we asking for a representative headcount on the Bench? The crux of the matter is that it ought to be reflective, but reflective of what?
Mr Mageean: We agree that the Bench should not be made up simply of a headcount of judges, and that appointments should be made on merit. Having said that, efforts could be made to ensure that the Bench becomes more representative of the community. Outreach measures and redefinition of merit are examples. We want to avoid any notion that judges are appointed solely because, for example, they are from one community or the other, or because they are female.
In the past the Bench has not been representative. Therefore, change is required in that area. A more representative bench will be the measure of the success of any change that is instituted. We are concerned that, although the criminal justice review asked that a representative bench be established, no timetable is set for that in the implementation plan. There is no target; there is not even a target for the consultations that are envisaged between the Northern Ireland Office, the Bar, the Law Society and the Equality Commission. We find that troubling. Although it may be difficult to set a time by which the Bench might become more representative, it is relatively straightforward for the Government to say that by the end of 2002, they will have consulted with all of the relevant parties, professions, the judiciary and the Equality Commission about the mechanisms that will be put in place to ensure that the bench becomes more representative.
Mr O'Brien: The discussion about merit is related to the point about the bench being representative. The criminal justice review identified a range of competencies, which they felt that the Bench and a judge should have. That is absent from the implementation plan and from the draft legislation. One of the engines for establishing a judiciary that broadly represents or reflects our society is an examination of the way in which judges are appointed and the criteria upon which they are appointed. The review went some way towards indicating how that might be done, but the implementation plan and the draft legislation have left it out.
Mr J Kelly: To refer back to Mr Maginness' question, has the judiciary been representative - yes or no?
Mr O'Brien: It is clear that it has not been representative. One only has to look at the issue of gender to be absolutely clear about that. Getting a representative judiciary is a problem that affects all sorts of societies. In several other countries and other jurisdictions, efforts have been made to do that. For example, Canada and South Africa have had similar problems. However, they grappled with their problems and did something about them. We need to be sure that the legislation will deliver a representative judiciary, but we are not convinced that it will.
Mr McNamee: Thank you for your brief written note, I look forward to receiving the expanded form. I could ask many questions based on your submission. Paragraph 2 refers to general problems with the implementation plan, which makes almost 300 recommendations that have not been implemented yet.
You referred to examples and concerns about human rights training and the appointment of judges. I understand that newly appointed judges are required to undergo human rights training. However, it appears that existing members of the judiciary will not be required to undergo such training. Given the incorporation of the European Convention on Human Rights (ECHR) into domestic law, the Human Rights Act and the potential for a bill of rights, I am concerned that judges who will be responsible for decisions in relation to those laws will not have had human rights training. It is one of the issues that you referred to and are concerned about.
Can you briefly outline some of your concerns about the prosecution service, and the areas where you think that the review's recommendations have been undermined by the implementation plan? Despite a proposed change of name, and advance talks about the undertaking of its new functions, given its existing membership I am concerned about how different a service it will be.
Mr Mageean: On the issue of human rights training, there are two distinct recommendations in the review and, consequently, in the plan. The first relates to the training of criminal justice agency staff. The implementation plan does accept that recommendation, but does not set any timetable for it to take place, leaving it to the discretion of each individual criminal justice agency to deliver that training. Certainly, from our perspective, that is unacceptable. Someone should be drawing together the training being delivered to each of the agencies. Immediate problems can be seen in relation to the standard of training delivered - whether it is uniform across all of the agencies, or contradicting training being given to other agencies. There are problems with that.
There is a recommendation that trainee lawyers be trained in human rights principals before they start to practice. We are aware from previous engagements with the Institute of Professional Legal Studies that, currently, trainee lawyers there receive about one day of human rights training in their year at the institute. Last year we were able to organise a one-off session, bringing senior officials from the European Court of Human Rights to spend a day with the students going through some of the jurisprudence. That was very much a one-off, and the students found it interesting and informative. At present they are not getting sufficient training. With the introduction of the Human Rights Act, the possibility of a Bill of Rights, and the statutory duty under section 75, those who will progress to be barristers or solicitors in Northern Ireland are going to be practising in a very different profession to that which existed five or 10 years ago. They need to be properly trained in this area of law. Unfortunately, the implementation plan leaves the training of those students to the discretion of the professions, and does not set a timetable for that to be done. Once again we have concerns that this situation needs to be remedied.
On human rights training for judges, although the review says that training for new judges should be mandatory, we are concerned because that does not appear to be reflected explicitly in the plan or in the draft legislation. The one area where the review seemed prepared to oblige judges to receive training does not seem to have received an explicit guarantee in the plan. Our general view is that judges should receive human rights training. Many judges sitting on the Bench in Northern Ireland qualified years ago, when they would not have been familiar with the European Convention on Human Rights, its introduction to British law, or with section 75. There is a need for judges to receive training in those areas.
Mr O'Brien: This illustrates one of the particular problems that we see with this. The review recommended mandatory training for new judges, but did not recommend mandatory human rights training for all judges. In our view that was a deficiency in the review - a weak recommendation. However, even that weak recommendation has not been given a proper base in either the plan or the draft legislation.
In our view, that is a pattern which occurs where the review document was insufficient on some of these areas. Often when it did make significant and important recommendations, those recommendations have not been followed through, and this is one example.
Mr Mageean: In relation to your question on the public prosecution service (PPS), we are concerned that the review appeared to envisage quite substantive change to the way in which the prosecutor's office is organised and the way in which it delivers its service. Unfortunately, when one looks at the plan, it appears that what is being envisaged is simply a renaming of the service and an expansion of its duties, but not much change in how that service is delivered. That is a potential problem, because public expectations have been raised, and significant change is envisaged.
You asked how the recommendations of the review in this area have been undermined. I will give one clear example. The review considered a number of cases where reasons for not prosecuting individuals were not given. Currently, it is the practice of the Office of the Director of Public Prosecutions (DPP) not to give reasons why they decide not to prosecute, and that has caused concern in a number of cases. The review recommended that in future, the general rule of thumb should be that reasons should be given. There may be certain situations where that cannot happen, but in general, it should be so.
Although the implementation plan states that that recommendation is accepted, it is essentially turned on its head, and the current rule is re-established. The situation remains that reasons are only given in exceptional cases. The review document clearly envisaged the reverse of that. It is very important for public confidence in the public prosecution system that we have increased transparency in the office.
You will be aware that the office of the Director of Public Prosecutions does not currently publish an annual report. The recommendation they should do so has been accepted. The giving of reasons is an additional factor that will lead to transparency in the office, and it is of concern that in that sensitive and critical area, the implementation plan seems to reverse the recommendation that was made.
Mr Campbell: I have one question on the judicial appointments commission. The previous delegation answered questions on the issue of the group of five lay members, and how the draft Bill would require that that group be representative of the community in Northern Ireland. How might that be reflected in statute, given that not only should we recognise definitions by gender and community background, but the almost fundamental faultline which has emerged in the community over the past three years?
The community that I represent and come from feels that the entire system is one in which they do not feel accommodated. How would any statute accommodate a representative section of the community if they were ignored? Last week's appointments to the Human Rights Commission ignored that section of the community again. How do you draw those threads together to get a lay group that is representative, not only in gender and community background, but also of the faultline that exists, particularly in one section of the community?
Mr O'Brien: A legislative formulation that would address that issue would be quite difficult to achieve. It would be a significant departure in respect of any public appointments process. Some countries, such as South Africa, have addressed the matter of judicial appointments by adding an explicitly political dimension to the membership of their appointments commission. I understand that all political parties have a membership of that body. That approach of ensuring that the whole spectrum of political opinion was represented might, to some extent, be a tidy way to address the problem. To what extent could those who make the appointments be relied upon to bear those factors in mind? That is another dimension. That is possibly the problem with all of these phrases. For example, you get two women on a policing board, in spite of very clear indications from Patten that it should be representative. Regardless, of the wording used, the challenge of delivering such a goal seems to be beyond those who make the appointments.
The Chairperson: Mr Campbell, we can find no-one to replace you. We would fall below quorum, so it is in your hands.
Mr A Maginness: I will never forgive you.
Mr Campbell: That is too big a prospect. I will ask my question before I leave.
Mr A Maginness: Do you have to catch a plane?
Mr Campbell: No, but it is almost as important. I appreciate your difficulty in defining such a group in statute. I assume that with a political element - with a small 'p' - such as you mentioned in South Africa, the spread of political opinion would be accommodated. However, if someone did not want to politicise the appointments - again, with a small 'p' - would it not be possible for a sizeable section, in effect the majority of the Unionist community, to be accommodated other than by some kind of headcount?
Mr O'Brien: I cannot come up with a legislative provision for that, apart from the one mentioned. In fact, that system has a capital 'P' and is overtly political. However, that is not to say that it is impossible to do what you suggest; only that it is all I can think of "on the hoof".
Mr A Maginness: Looking at the suggested mechanism, there are lay members and the judiciary. Under that system judges will appoint judges. In reality, the lay element is so weak as not to make a serious input into the appointment of judges. What do you think of that system? Mr Campbell made the point that those in his community who are anti-agreement should have representation. How are those problems resolved?
Mr O'Brien: The judicial appointments commission is another example of the review's recommendations falling far short. For precisely the reasons you quoted - in continuing a system whereby judges, at the end of the process, would still hold the day - this mechanism does not promise an adequate system to secure a transparent, independent and acceptable mechanism for the appointment of judges. We provided the Government with our response and recommendations for making improvements to that process, although they have fallen on deaf ears.
Mr Mageean: With reference to Mr Campbell's comments, we suggested that the review body look at the South African experience and they did, indeed, visit South Africa and attended hearings of their judicial appointments commission. The South African Judicial Services Commission, which is comparable to the proposed appointments body here, includes senior judges, solicitors, barristers, academic lawyers and members of parliament, provincial delegates and four presidential nominees. Members of parliament were included in that body and we recommended a similar provision to the review. For whatever reason, they choose not to take that path.
Mr A Maginness: Do you regret the lack of politicians' input, or do you think that it is a good situation?
Mr Mageean: We do regret that, and we feel that there should be a broader political input to the process.
Mr A Maginness: Do you see a contradiction between the fact that politicians can assist in the appointment of the Chief Constable of the Police Service of Northern Ireland and cannot have an input into the appointment of judges?
Mr O'Brien: The appointment of the judiciary is at the core of society, and it is important that everyone with standing in the community is included. Our view is that when considering the make-up of that body, it should veer away from judges appointing judges. The more representative it is the better.
The Chairperson: Thank you very much for your time this afternoon.
MINUTES OF EVIDENCE

Tuesday 11 December 2001

Members present:
Mr Dalton (Chairperson)
Mrs E Bell (Deputy Chairperson)
Dr Birnie
Mr Campbell
Ms Lewsley
Mr A Maginness
Mr McNamee
Mrs Nelis
Mr Paisley Jnr

Witnesses:

Mr O Brannigan )
Mr B Rowntree ) The Probation Board for
Ms C Lamont ) Northern Ireland
Mr B Fulton )
The Chairperson: Good afternoon and welcome to the Committee.
Mrs E Bell: I declare an interest as a member of the Probation Board.
The Chairperson: Perhaps you will introduce yourselves?
Mr Brannigan: My name is Oliver Brannigan, and I am the Chief Executive of the Probation Service.
Ms Lamont: I am Cheryl Lamont and a member of the Probation Board's senior management team.
Mr Rowntree: I am Brian Rowntree, Chairman of the Probation Board.
Mr Fulton: I am Brendan Fulton and also a member of the Probation Board's senior management team.
The Chairperson: We have received a paper from you, which has been distributed to the members. We will hear your opening comments and then members will ask questions.
Mr Brannigan: Thank you for the opportunity to appear here today. We made a substantive reply to the Criminal Justice Review Group, and I have copies of that if anyone wants one. We see today's hearing as the beginning rather than the end of the debate and will be open to more questions after today.
We welcome the implementation plan as a beginning to opening up the criminal justice system to community involvement, local political scrutiny and partnerships. We think that is very good. Our main interests are restorative justice, juvenile justice, sentences, prison and probation. As part of the criminal justice family, we have an interest in all aspects of the review and implementation plan.
We fully subscribe to the principle of partnerships, but while it is very easy to do that, it is more difficult to breathe life into the principle. We work hard to achieve this although we do not always succeed because partnerships are easy to start up but difficult to sustain and maintain.
We have some concerns about the implementation plan. Generally, it will facilitate partnerships, given good will and some humility from us all on the journey. However, a criminal justice system that does not try to re-integrate offenders back into their communities, so that the communities can play a major role in their supervision within them, will fail the communities. We see going to prison as an interruption of community living for a long or short time. With few exceptions prisoners return to their communities. We have to work with prisons to make sure that people coming out are ready to re-join their communities and that the communities are ready to receive them. Unless those two parts of the equation come together, it is a revolving door situation - even more so than it is now.
A great deal of work can be done in juvenile justice. We endorse the principle that work has to start before a person gets too far into the criminal justice system. We are very much in favour of diversionary work, starting at school age, or before, to make sure that juveniles are helped to keep away from the criminal justice system. Once they get into it, it is difficult to get them out of it again unscathed, so this is an important aspect. When they get into the criminal justice system we want the right balance between care and control. There must be care with human rights protection and that sort of thing built in. That is where we stand, though our paper says more about our concerns about the draft Bill and the implementation plan.
Mr Campbell: At paragraph 8·4 of your submission you express disappointment that the implementation plan does not address people's being imprisoned for non-payment of fines. You refer to the high numbers, though the periods of time are quite short, and talk about possible alternatives. Can you expand on that?
Mr Fulton: We have expressed views to the NIO about this in the past. First, I will deal with a legal issue. At present a warrant is issued for the non-payment of a fine, and our understanding is that this does not have to come back to court. We would like that to be brought back to court before a warrant is executed. A court might seek to have options at that point like some kind of reparation such as, for instance, community service. Reparation could be punishment other than prison. We have ideas on this that we could give a detailed submission on.
Mr Campbell: Whether fines are paid or not, community service is an option anyway. Obviously you have not worked on this yet and will not be able to elaborate. However, I would be interested to hear your options for the immediate future, because people are concerned about the numbers going through the administration because of non-payment of fines. If there are viable, workable alternatives, I would like to see them expanded upon, so that we could talk about them.
Mr Fulton: I understand what you are saying. However, the review did not mention it in the first place. In our initial submission we suggested that it could be considered, but that has not happened, so we still trying to get it on the agenda. However, there are occasions when community service is not considered at sentencing point. Some are fine-only situations, or there are limited options for the courts. That is why we do not yet have a paper on this subject.
Mr Campbell: Your submission, particularly at the beginning, centres on a fairly strong rejection of its becoming a next steps agency. Will you elaborate on what you see as the alternative?
Mr Brannigan: At the moment the board is a non-departmental public body, and we believe strongly that this is the best way of proceeding. Any criminal justice system that does not work closely with the community will not succeed. A probation service must take risks when it is striving to find effective measures for offenders. The first concern of a next steps agency, rightly and understandably, is to protect its Minister, whoever that is, so risk taking is not as palatable as it could be for an organisation one step removed from the Minister. For example, if I do something stupid, the chairman and the board, as the buffer between me and the Minister, would have something to say about it, but the Minister would not be embarrassed.
We have to work very closely with communities and form partnerships with them. Although we need to keep within the boundaries of audit and professional requirements, it does mean working at community level, which next steps agencies have not shown themselves to be all that good at, being more hidebound by Civil Service convention than the board. We favour a way of delivering service that brings us closer to the communities.
Mr Campbell: Is it more than bureaucracy and endeavouring to shield the Minister if things go wrong?
Mr Brannigan: Bureaucracy and shielding the Minister can be hard to separate. We must have some bureaucracy. Being employees of the board gives probation officers a degree of flexibility, motivation and space to work within well-defined boundaries that they would not have as civil servants.
Mr Paisley Jnr: In your submission today, which is very short compared with the major submission that you gave to the review body, you indicate, quite rightly, the lack of clarity in the draft Bill. You say that you are going to reserve your final position until you are clear about your responsibilities and role in the future. You also say that the role of Probation Service in the draft Bill is, to say the least, ambiguous. Does that lack of clarity result from a failure by NIO to consult properly with you? Was there any serious consultation? Your criticisms show that if there was proper consultation, either you did not get to make your point or NIO did not pick up on it.
Mr Brannigan: Our response to the consultation with us is contained in the original document, which was a response to the review recommendations. We understand that the Bill is still in draft form and that there is a second round of consultation on it. We have been given an opportunity at this stage to put our views. However, we had no such opportunity between our original response and the production of the Bill. Now that the Bill is in draft form we are being given that opportunity, and we are seeking clarification and suggesting where probation should fit into the new structure. The opportunity did not arise between our response to the review and now.
Mr Paisley Jnr: It is not clear what is meant in the draft Bill by community justice. Reading between the lines in the draft Bill and your submission it is not certain what the Government mean by community justice. Do you agree that the phrasing in the draft Bill could mean different things to different people? It is important to be absolutely clear and certain about what is meant by community justice.
Mr Brannigan: It is important to establish the rules on how community justice will work in relation to human rights and to make sure that it is not an alternative justice system. Delivering community justice is more important than what exactly is meant in the draft Bill. We are not talking about alternatives but about complementary and supplementary procedures to the official system.
It is not clear where the Probation Board fits into the implementation jigsaw. Its role in juvenile justice conferences is not clear. We have other concerns that we want to make overtures on. For example, a court has no discretion on whether to send someone to a youth conference or not although a prosecutor has discretion on whether to send someone to a diversionary youth conference. We cannot find the guidelines, criteria or information on which a prosecutor should make that decision in the draft Bill. We want to be able, for instance, to supply a youth conference suitability report to a prosecutor or court. A prosecutor should have access to such a report because he will be giving life to the concept of diverting young people from ending up in court. A prosecutor will need a great deal of information to enable correct decisions to be made with consistency and equality. However, the draft Bill does not detail who will supply that information to him. An explanatory note should be included to the effect that someone has to do that, and we see the board as a major contender for that work.
Mr Paisley Jnr: Are you arguing for a more transparent system of plea-bargaining for juvenile offenders?
Mr Brannigan: Plea-bargaining has certain connotations that we do not support. We are arguing for more consistent, quality decision-making - not plea-bargaining of any quality.
Mr Paisley Jnr: If the draft Bill is implemented in its current form, will it be detrimental to the role of the Probation Service?
Mr Brannigan: The draft Bill names responsible officers and youth conference co-ordinators. A group of people who will do work at the designation of the Secretary of State is also mentioned. We are not sure where the Probation Service fits into that, and that is why the submission states that our role has not been clarified.
It would be a missed opportunity to squander our years of experience of working with young people at all stages of the criminal justice system. We also write reports to advise the courts on sentencing and delivering programmes to help rehabilitate young people. It is not clear where we fit in here, and it would be a retrograde step if we were not included.
Mr Paisley Jnr: In your submission at paragraph 2.0 you state
"We agree that strenuous and sustained efforts are required to ensure the establishment and continuation of community confidence in criminal justice."

Are you concerned that some proposals in the draft Bill over-politicise how the Court Service will make appointments when some of the new institutions are set up?
Mr Brannigan: I really cannot add to our comments about the Court Service. We are officers of the Court Service and work in whatever environment we are asked to work in. If members of the judiciary are seen as independent and are appointed on merit, we have no comment to make.
Dr Birnie: At paragraph 3.0 of your submission you say
"One area of concern we have is the absence of criteria which would facilitate the prosecutor in making a decision to divert a young person from court proceedings."

Can you suggest what criteria might be used in such cases?
Mr Brannigan: Obviously the criteria would be fairly static, such as the previous record of the young person and the seriousness of the present criminal offence. Over and above that, there should be a body of expertise to take account of the situational factors of a young person with consistency and balance and regard for the first two criteria mentioned.
At the risk of repeating myself, our concern is that a prosecutor, as we read it, will not have any information other than that supplied about the offence apart, perhaps, from information that led the police to believe that they should not issue a caution in the case. Obviously police cautions still exist, and the police gather information on which to make decisions about cautions. That can be fairly superficial information, adequate for cautioning, but with more serious offences at the prosecution stage, a prosecutor needs more in-depth information to enable proper decisions to be made. We would be concerned if a prosecutor was making such serious decisions without proper information, or at least access to it.
Ms Lewsley: I want to look at aftercare and support. You are looking forward to being part of the working party to be set up by NIO. Who else will be on it? You would like to see the group widened to include other statutory authorities such as the Housing Executive. Your submission says that you can only provide post-release statutory supervision for 50% of young people who are released. What happens to the others? Who supports them once they are out?
Mr Fulton: There are two elements in that. We understand that there is a proposal for a working party within the criminal justice agencies - predominantly including the Prison Service and ourselves. We would like that to be cross-departmental and inter-disciplinary with the other areas that you mention taken into that. This is a chance for an overall strategy to enable prisoners to return to their communities. All statutory players with relevant responsibilities should be thinking together about how to deliver that.
The largest proportion of the 50% figure is from custody probation orders - the way in which they are designed is predominantly a Crown Court sentence. The other elements are made up of transfers from Great Britain, life sentence or indeterminate sentence prisoners and some sex offenders, subject to licence. That means that a large group of young offenders, as well as persistent and short-term prisoners, do not have statutory supervision on leaving.
We have a presence in prisons, and we assist the Prison Service to put packages together. Those comprise four main strands: accommodation; family relationships and employability; finance; and employment and training. However, we also want to see changes in behaviour where there is alcohol or drug dependence or other problems with way they view the world.
Currently, we try to provide connections into the communities for such people. However, the criminal justice review recognised that we are not resourced to provide that package for every prisoner who is released. This is an attempt to fill those gaps. There are two aspects to that: the provision and the uptake of the service. If we had the resources and a cross-departmental strategy, we would provide supports and then look at the take-up of them. For those not on statutory supervision, all that is voluntary, and we want to assess that as well.
Ms Lewsley: Do you have statistics that indicate that those who do not receive the package re-offend?
Mr Fulton: We have internal views on that, but we are also trying to take account of the overall Northern Ireland statistics. However, the last official statistics we worked from were based on individuals who left prison in 1996. The new Order came in during 1998, so custody probation orders have not been running long enough for any strategic measurement of re-offending. Therefore, we are trying to evaluate the way in which take-up happens and the way in which we can assist immediate adjustment into the communities.
The meeting was suspended at 3.10pm for an Assembly Division and resumed at 3.35pm.
Mr McNamee: Thank you for your submission. Paragraph 7.0 of it says that
"the Prosecution Service's deliberations and decisions must be as transparent as possible, however, the Bill does not appear to support this concept".

That comment was made by others. Should the service be required in each case to disclose reasons for a decision to prosecute or not to prosecute?
Mr Brannigan: If at all possible it should. We can envisage situations or considerations which would prevent that, but such circumstances should be exceptional.
Mr Paisley Jnr: You were sceptical about the draft Bill's philosophy and about juvenile justice. The introduction to your submission says that
"The Board holds fast the principle of local communities and families playing a critical role in the process of helping offenders reform"

It also states your concern that, were the board to become a next steps agency, efforts to reintegrate offenders might be undermined. Can you give us an example of how that would happen as a next steps agency when it does not happen to the board in its current format? You ask the Assembly to decide on this in the fullness of time, so it would be useful to have an idea of what happens now and what would happen as a next steps agency.
Mr Brannigan: At the risk of repeating myself, the Probation Service moved away from the Civil Service in 1982. Since then the board has kept alive the concept of criminal justice in many communities. Other criminal justice agencies found that very difficult, but we were seen to be distanced from the Government and the Civil Service, and community members were on the board.
We were not working under the same constraints and restraints as civil servants had worked for years partly because of the democratic deficit brought about by direct rule. However, even after the Assembly plays a major part in addressing that deficit here, alliance to the Civil Service will still be too close. Rather than act under similar constraints as civil servants, the board should have well-defined boundaries of engagement and professionalism. It is a better vehicle now.
That is our judgement and the feedback from the communities. We are trusted as a neutral body which goes impartially about its job and has no political or sectional interests. Communities are more willing and ready to work with us than with central Government. In other next steps agencies, such as employment ones, we do not see the same level of community involvement other than at an advisory level, and that is not close enough for delivering the service that we want to deliver, which involves working with communities.
Mr Paisley Jnr: Is that reluctance by offenders and their families to work with the agencies more obvious in one section of the community than the other? Does it relate to the sectarian breakdown in Northern Ireland, or does it go deeper and cut across socio-economic grounds?
Mr Brannigan: The vast majority of clients and offenders come from one socio-economic group, and we do not work across groups as a rule. However, that is changing slightly with drug offences, but the vast majority of young people, and not so young people, come from one socio-economic group. There are political agendas, which vary from community to community. As employees of a board, rather than a Government Department, our staff have been able to overcome that, and there is no difference in how we are perceived by any community. We have kept out of political arenas and agendas. We provide a professional service to offenders that holds them to account, and we ask communities for their trust and assistance.
A next steps agency would not have the same approach or get the same response. I know because I have been in the service long enough to remember when the board was part of the Civil Service. It is the best way to deliver the service, because there can be freedom of action within well-defined boundaries.
Mr Rowntree: A next steps agency assumes that there is only one model of public governance. However, there are various such models, for example non-departmental public bodies. The challenge for the centre lies in administering and monitoring the various models. To change everything to a next steps agency purely to gain control is too simplistic, and the benefits for the clients you are trying to manage and represent must be considered. Our board structure caters for that.
Mr Brannigan: The draft Bill and implementation plan suggest that the Youth Conferencing Body should become a next steps agency. However, that may not be the best way to deliver a service to young people. The Probation Board has delivered a service to juveniles, and to move away from such a body to create a next steps agency would be a retrograde step. Next steps agencies gather people around them in an advisory capacity rather than a partnership. It is important that the parents of young offenders, communities and the education system work together to serve those young people. A next steps agency is not best suited to doing that.
Mr Paisley Jnr: Does the Probation Board believe that if the draft Bill comes into effect in its current form, the rate of reoffending will increase rather than stay at the present stable level or decrease?
Mr Brannigan: There is no research to back up such a rash statement. However, the communities would perceive that they were not involved with young people as they should be. To reduce the rate of reoffending - and this does not include nuisance and vandalism - communities, parents and probation officers who are prepared to do that work must work together. The board is in the best position to motivate and facilitate staff, but next step agencies have no history of working with people at ground level.
Ms Lewsley: That is the part in which I am particularly interested, for young people are often left alone, and you can deal with only 50% of them. This is not just about young people but about how extended families cope when they return. It is to do with education, information and an awareness of how communities react to a young person's return, for they are often hostile. It is often a matter of reacting to events, but what about being proactive? Might the Probation Board work with young people before they start offending?
Mr Brannigan: There is such work, though for some time economic constraints stopped us doing it. The situation has improved in recent years, and we are back working in communities. We are running, for example, preventative diversionary programmes in co-operation with social and education services. We must develop that. One strength of the draft Bill is that it and the implementation plan state that resources will be available for what we term "non-statutory work" - diversionary work. We are most anxious to continue that. We have a history of bringing other organisations on board to that end, and we wish to develop that.
Mr Rowntree: Paragraph 7.0 of our submission refers to community safety. I take Ms Lewsley's point that that area does not require devolved administration; we need not wait until justice is devolved. The Executive can already establish a community safety policy across all Departments, examining helpful initiatives and instigating diversionary measures. It would also bring about community understanding of criminal justice and provide a focus for justice matters.
It is essential that we prepare for justice to be devolved. The Executive must examine community safety closely as a vehicle for developing models like those you mention. We must be clear about the relationship between community safety partnership agencies and boards, such as our own, that deal with reserved matters. We must liaise to deal with non-devolved and reserved matters with the devolved Administration. We must be careful about how we work, who finances what arrangements and who takes responsibility. There is also the matter of policy setting in the community safety unit. Will the Executive have an input, or will responsibility be reserved so that matters remain at the Secretary of State's discretion?
Mr Brannigan: That whole approach, especially with reference to young people, must be built on the concept of partnership. We are concerned about one other stipulation in the draft Bill, namely, that the juvenile justice conference and the youth conferencing set-up have a built-in veto; the draft Bill gives the police a veto on any plan the conference produces. On the basis of partnership, we believe that no one in the planning cycle should have such a veto. As it happens, the draft Bill gives that right to the police, but the important part is that we believe acceptance of the plan should lie with whoever refers the juveniles to the planning process - either the prosecutors or the courts. If there is to be real partnership in the plans' construction, no participant should have a veto. Plans should be presented to the prosecutors or the courts, for it is they who have the right to accept or decline them. Giving someone a veto in the partnership process means that it is not real partnership, and if that is so, it will not work with young people.
Ms Lewsley: I take it that you also hope to be part of the restorative justice partnership?
Mr Brannigan: Restorative justice is an integral part of dealing with young and old. The draft Bill refers to young people. Community restorative justice should be available for dealing with low-level crime, provided that human rights and other safeguards for vulnerable people are protected. That is essential. Restorative justice must, as the draft Bill states, be open to inspection and subject to checks and balances. It is responsible and demanding work.
This concerns young people who have come into conflict with their community. It may not be to the extent of an identifiable criminal offence, but it may concern a nuisance, and it could be a criminal offence. Provided the proper checks and balances and the spectatorial arrangements are built in, we see a role for community restorative justice conferences.
Mr Rowntree: Whether attending a diversionary conference constitutes a criminal record must be clarified
Mr Brannigan: The draft Bill says that a young person must agree to attend a conference. If he opts out halfway through, that is not mentioned when he goes to court. We are not clear if attendance at such a conference constitutes a criminal record. Nothing in the draft Bill or implementation plan tells us that, and this is very important - we prefer that it did not constitute a criminal record.
The Chairperson: We must stop there. I apologise for the time that was lost due to the vote. Thank you for your contribution.
Mr Brannigan: I reiterate our willingness, individually or as a group, to give any further information or opinion that may be helpful. We appreciate being able to give evidence. It has been very positive and productive for us.
MINUTES OF EVIDENCE

Tuesday 11 December 2001

Members present:
Mr Dalton (Chairperson)
Mrs E Bell (Deputy Chairperson)
Dr Birnie
Mr Campbell
Ms Lewsley
Mr Paisley Jnr
Mr A Maginness
Mr McNamee

Witnesses:

Mr John Larkin )
Mr Gordon Kerr )
Ms Tessa Kitson ) Criminal Bar
Ms Geralyn McNally ) Association
Mr Donal Sayers )
The Chairperson: Good afternoon. Thank you for attending the Ad Hoc Committee today. As members of the Bar, Alban Maginness and I must declare an interest.
Mr Larkin: I am vice-chairman of the Criminal Bar Association. I am leading the delegation today, in the absence of our chairman, Eugene Grant QC. He participated extensively in the criminal justice review and was it therefore deemed appropriate that he should not head up this afternoon's delegation.
The Criminal Bar Association welcomes the opportunity to be present today and to offer to the Committee such assistance as it may. The association represents criminal practitioners and has done so successfully for some time, since its recent revival. It does not represent the entire Bar of Northern Ireland, whose members have many different views. It is only to be expected that in a micro-community such as the Bar, there will be all of the views to be encountered around this table, and many others.
We propose to introduce, in broad terms, some of the themes that concern the Bar. We will then take your questions. Many highly sensitive political issues arise in the context of the criminal justice debate, in the broad sense, and with particular reference to the Bill and the implementation plan. We do not propose to express a view on those matters. Our role, as we conceive it, is restricted to expressing technical views about reformist measures, in the narrow sense, rather than discussing issues on which the Bar is almost certain to be divided.
Even in that broader rubric of reformist measures, there might be a variety of opinions among our delegation, some of which I hope will emerge during our responses to the Committee's questions. As counsel, our primary concern and commitment is to the rule of law and the increasing importance of international human rights standards. We are pleased that those are reflected, at least partially, in much of the Bill and the implementation plan. We will now throw ourselves at the mercy of the Committee.
Mr McNamee: You spoke about the Bill in the context of human rights principles. At present, there does not seem to be any obligation on existing judges to undergo human rights training. If the criminal justice system is to include a human rights ideology, judges, in particular, should be required to receive training to give them an understanding of international human rights standards. Do you think that there should be such a requirement for existing and newly appointed judges?
Mr Kerr: I sometimes sit as a deputy County Court judge. Before the Human Rights Act 1998 was brought into effect, the judicial studies board held training sessions for all existing members of the judiciary, and everyone was expected to attend. At least two full one-day sessions were held.
Mr Larkin: I was aware, in general terms, of that practice. Under section 6 of the Human Right Act 1998, all public authorities, which includes judges, have a statutory requirement to act in accordance with the substantive articles of the European Convention on Human Rights (ECHR). Undoubtedly - and I say this primarily from the perspective of counsel - we could all do with more human rights training, because we could never have enough of it. The judicial studies board already offers that training.
Mr McNamee: I accept that judges are required to act in accordance with the terms of the Convention. Training is available, but, in the light of the Human Rights Act 1998 and the bill of rights that we are likely to have, would it be better if judges were obligated to avail of that training?
Mr Larkin: From a personal perspective, there is, theoretically, a potential tension between judicial independence and the notion of someone "training" judges. One of the key elements of judicial independence is that the judge is immune from particular doctrinal pressure once he or she ascends the Bench. Sadly, one has to observe that it has been more a case of "he" than "she" in the past. After a judge's ascent to the Bench, who would provide that "training"? Typically, it would be provided by a Government agency. I envisage a theoretical objection to the imposition of a compulsory training component upon figures who should, in theory and practice, be independent.
Dr Birnie: It was envisaged in the review that if, or when, responsibility for justice functions is devolved, an Attorney General should be created as a "non-political" figure. How realistic is that goal?
Mr Larkin: That is a question to which I must give a somewhat "Asquithian" answer - we must wait and see. It is clear, however, that much of the civil work of an Attorney General at Westminster level, is done by a senior member of the Bar Library in a purely professional, technocratic fashion. It is possible that the responsibilities of such a post could be carried out in a non-partisan fashion. Obviously, many matters of principle would be involved, and politics, in the broader sense, is unavoidable. However, one would hope that partisanship could be avoided.
Dr Birnie: The review also envisages that district judges in Magistrates' Courts will assume some of the functions of justices of the peace. What does that entail? Would it be workable?
Mr Larkin: As far back as the Irish Convention of 1917, there was a proposal that the exercise of functions by unpaid magistrates - justices of the peace - should cease. While many citizens gave generously of their time, the administration of criminal justice is, increasingly, a highly technical business in which lay people intrude at their peril. The increasing professionalisation of criminal justice is a good thing, but that is not to say that there should not be appropriate lay input that can safely be accommodated.
Ms Lewsley: I am glad to see you here, despite the fact that some of your colleagues declined the invitation. Recommendation 41 of the criminal justice review report deals with the objective of community outreach and how that can be achieved. I feel that there should be more information, education and awareness about the role of the Department of Public Prosecutions (DPP). There is a perception that it is an untouchable body that is answerable to nobody. That is particularly the case in instances where the DPP decides to not prosecute - people cannot understand why they are given a reason for those decisions.
Mr Larkin: I will say a little about that, and then I will invite Ms Kitson and Mr Kerr, who have greater experience in this area, to contribute. There is a strong argument that the DPP, or its successor organisation that is envisaged in the Bill, should give reasons for its decision to not prosecute. Although there are technical difficulties with giving reasons, they should be provided, given our culture of increasing openness. Mr Kerr and Ms Kitson will probably have a different perspective, because they have greater experience of the conduct of prosecutions.
Mr Kerr: From my experience as prosecuting counsel, there are two main issues. Over the last few years there has been a growing culture of awareness of victims. The DPP expects its counsel to recognise that there must be early involvement with the injured parties and victims and that they must be open with them about the progress of the case.
I disagree with Mr Larkin on the question of whether or not reasons for not prosecuting should be given; there are compelling reasons why an explanation should not always be given. A reason for not prosecuting might often appear to denigrate an injured party or victim, and that may be unnecessary and distressful for them. An assessment of the witness might conclude that he or she is incapable of giving the necessary evidence. It would not be in anyone's interest to further humiliate a person by telling him or her that.
There might also be technical or legal reasons why people are not prosecuted. That can have two effects. First, that might suggest that you think that the person is guilty, but that you do not have the technical proof. Secondly, if the case is a matter of public concern and attracts publicity, and if the proofs are perfected later, difficulties might arise in regard to publicity and the fairness of the trial.
Those can be good arguments against giving reasons for not prosecuting. However, my understanding of the DPP's policy is that every case is examined to see whether it falls in those categories. If it does not, reasons will be given, where possible. The Bar Council of Northern Ireland believes in that openness where possible, and it approves of that course of action.
Ms Kitson: The DPP now takes great steps to involve counsel at an early stage to get an independent opinion, particularly in sensitive cases such as those involving child abuse and sexual abuse. Child victims or victims of sexual abuse, for example, would not like the details of their cases to be publicised, particularly if there is a decision to not prosecute.
Mr Paisley Jnr: What percentage of the Bar does the Bar Council of Northern Ireland represent?
Mr Larkin: That is a good question, but it is quite impossible to answer. The Bar Council of Northern Ireland represents those members who do a significant percentage of criminal work within their practice.
Mr Kerr: It probably represents about a quarter or a third of the Bar.
Mr Larkin: That is a reasonable figure.
Mr Paisley Jnr: Is it the case that you are not taking a corporate view in regard to Clause 62, which deals with symbols?
Mr Larkin: Yes, absolutely.
Mr Paisley Jnr: Are you taking any position on that, one way or the other?
Mr Larkin: No.
Mr Paisley Jnr: A couple of weeks ago, when the Law Society met with the Committee, it indicated that it had some concerns that the Bill might introduce a politicisation of the supervisory function of the Lord Chief Justice. Has the Bar Council of Northern Ireland examined that issue? Have any of your colleagues expressed concern in that regard?
Mr Larkin: Is that a reference to the rule-making power that is conferred upon the Lord Chief Justice?
Mr Paisley Jnr: Yes, but I refer also to the ethos that might emerge from the Bill, as a result of the setting up of politicised positions to which people are appointed by politicians.
Mr Larkin: In its submission the criminal justice review, the Criminal Bar Association (NI) stated the one view that it is broadly in favour of the judicial appointments commission as an attempt to ensure that there is transparency in the process of appointments. However, the Bar Council of Northern Ireland has taken no view - corporately and, in many cases, as individuals - on the specific role that should be assigned to the Lord Chief Justice in that process.
Mr Paisley Jnr: Are you concerned that the Bill might result in politicisation, or do you believe that there are enough checks and balances to prevent that?
Mr Larkin: It is difficult to say. The Bill contains a clause that purports to guarantee the continued independence of the judiciary. It is arguable that the increasing involvement of judges, particularly the Lord Chief Justice, in such a contentious issue as judicial appointments, and similar matters, might create a tension between the desirable theoretical objective and the small print. It might also affect the way in which decisions on judicial appointments are made.
Mr Paisley Jnr: Would you be equally concerned if politicians became involved in that process?
Mr Larkin: Politicians are already involved; it is just a question of which politicians?
Mr Paisley Jnr: Exactly. If the Bill were introduced in its current form, would you be satisfied as a practitioner that the rights of the accused and the victim would be fairly upheld, or might it create new problems?
Mr Larkin: This not primarily a criminal procedure Bill. It will not affect the procedure of a criminal case - before a judge sitting alone or a jury - except in regard to minor matters. For the first time in legislation, the Bill offers express recognition of the rights of victims, therefore victims gain something that they did not previously receive. However, for the most part, the Bill will probably not change the conduct of the criminal trial. It introduces special procedures for cases involving youths. In response to your question, the Bill does not make much difference, but it gives something extra to victims, and we welcome that.
Our one concern is that the public prosecution system that will be introduced by the Bill will have massive funding implications. If that system is to work at all, it is essential that it be adequately resourced. The Criminal Justice Review Implementation Plan envisages that the public prosecutor will make the initial decision to prosecute. There is almost a sleight of hand between recommendation 17 and the text of the Bill. Recommendation 17 states:
"We recommend that in all criminal cases, currently prosecuted by the DPP (NI) and the police, responsibility for determining whether to prosecute and for undertaking prosecutions should be vested in a single independent prosecuting authority."
That is accepted. However, according to the text of the Bill, the police will continue to decide whether to prosecute, because the decision whether to charge someone and what charge to make will often take place at the police station. The DPP will get involved later, as is the case now. In our submission to the criminal justice review we considered that there was much of merit in the Scottish system and in many North American jurisdictions where, for example, the procurator fiscal or the district attorney can intervene at an early stage to determine how someone should be charged.
Mr Paisley Jnr: Can I confirm that you are not suggesting that we implement features that are similar to those of the Crown Prosecution Service in England and Wales? You identified the numerous problems of that system.
Mr Larkin: Those problems have been the subject of extensive consideration across the water. The Bill does not replicate that pattern; it seeks to provide a separate system that, in some respects, is different. We would have preferred that the Bill had, in more express terms, given effect to recommendation 17 of the Criminal Justice Review Implementation Plan. Even though the Government accepts recommendation 17, the Bill itself does not textually give effect to it.
Mr Campbell: I accept your response to my colleague's question that you have not taken a view on the issue of symbols and that you will not be doing so. I will not try to obtain a further response on that matter, because you have recorded your position; I have a factual question. Are you aware of any changes to publicly displayed symbols, inside or outside Scottish courts, in the last 30 or 40 years?
Mr Larkin: If you are referring to a change in the display of Scottish arms, pre- or post-devolution, it is my understanding that no change has occurred.
The Chairperson: What will be the impact of the restorative justice provisions, particularly the proposed youth conferences?
Mr Sayers: Those provisions constitute a large section of the Bill, and they will introduce massive sweeping changes. Several detailed points need to be considered. First, it is important that legal advice is provided to the child before he or she is, in effect, arraigned by the public prosecutor. On reading clause 57, that does not appear to be envisaged. It appears that legal aid, advice and assistance will kick in process leading to a youth conference has been started. A youth conference might not start, depending on the advice given at the time of the youth's effective arraignment by the public prosecutor. That must be examined.
There is at least one other detailed point on the proposed new article 10B of the Criminal Justice (Children) (Northern Ireland) Order 1998, on page 44 and 45 of the draft Bill. Certain problems might arise from the concept of a youth conference. For example, paragraph (4) on page 45 deals with situations where there is a time limit on the institution of proceedings for any offence. If a youth conference has been abortive, the time that has elapsed between the point when someone is referred to a youth conference and when proceedings are aborted is not considered for the purposes of deciding whether a time limit for instituting proceedings has passed. The apparent difficulty is that, after an unsuccessful youth conference, when a matter comes before a court and proceedings are issued, ostensibly out of time, it will be clear to the court that a reference was made, unless that is objected to. It will therefore be clear that the child admitted the offence to the public prosecutor. The child's rights at that stage, under article 6.2 of the European Convention on Human Rights on the presumption of innocence, are entirely negated. That cannot be sorted out through a rehearing by a differently constituted tribunal. That will be a difficulty with cases involving offences to which time limits apply.
The Criminal Bar Association Committee accepts broadly the notion of dealing with children in a way that envisages rehabilitation as the prime mover behind punishment. There may be a difficulty with clause 49 of the draft Bill, because it does not relate exactly to what was accepted in the implementation plan. A brief summary is given of the aims of the youth justice system that does not take into account the international human rights standards that are referred to in the implementation plan. Clause 49 also appears to adopt a hierarchy, whereby the primary aim of the youth justice system is stated to be the protection of the public. Thereafter, it states that regard must also be shown for the welfare of children. Perhaps that hierarchy should be re-examined in the light of the UN Convention on the Rights of the Child. The welfare of the child must be paramount.
Mr Maginness: Should a court have an absolute right to refer a child or a juvenile to youth conferencing?
Mr Sayers: Are you asking whether the courts should have the right to do that against the wishes of the child?
Mr Maginness: No. It seems that the court has a limited discretion, whereas the prosecutor seems to have unlimited discretion. Do you think that the court should have the same discretion as the prosecutor?
Mr Sayers: Such a situation, where the hands of the court are apparently tied by the legislation, is always to be avoided.
Mr Maginness: Is it the case that the court can consider a youth conference only when the juvenile has pleaded guilty?
Mr Sayers: A conference can be implemented when a juvenile has been found guilty.
Mr Maginness: Do you agree that it should be possible, before that stage, for a court to decide that a juvenile should be referred to youth conferencing?
Mr Sayers: That would be appropriate.
Mr Maginness: Is there any substantive difference between the present position of the prosecution service and the proposed position, as outlined in the Bill and the implementation plan?
Mr Larkin: The differences are not as substantive as those envisaged by the criminal justice review. Those appear to have been accepted, as shown by the Government's response to, inter alia, recommendation 17. Some changes have been made. The rector is no longer under obligation to act under the direction of the Attorney General.
Mr Maginness: Apart from the fact that the Attorney General will not have the power to direct the new DPP to press charges, what changes have been made? Does he not still have the power to oversee the prosecution service?
Mr Larkin: Yes, the Attorney General still has that power.
Mr Maginness: Apart from those distinctions, are there any real differences between the current system and the proposed one?
Mr Larkin: The changes are not radical.
Mr Maginness: They are insubstantial.
Mr Larkin: I am loath to accept that as a full proposition. The changes are not as substantial as those envisaged by the review, and as accepted by the Government in their implementation plan.
Mr Maginness: Is it correct that the Criminal Bar Association wanted the changes to go much further?
Mr Larkin: The Criminal Bar Association, in its submission to the criminal justice review, supported a more proactive prosecution service. Bearing in mind the difference in legal culture, it wanted something closer to the Scottish procurator fiscal system.
Mr Maginness: Is it correct to say that, under the proposals relating to the judicial appointments commission, the judges would have a disproportionate influence on the appointment of other judges?
Mr Larkin: They certainly have a large interest. It would not be for us to judge whether that influence would be disproportionate.
Mr A Maginness: You are very diplomatic.
Mr Larkin: We like to think that that is one of our skills.
However, as is widely known, the judges already exercise a massive influence on the appointments procedure. That influence is not characterised by transparency or openness. This system puts it on a statutory footing where the influence of the respective elements can be clearly discerned, and that has to be an improvement.
Mr A Maginness: I was not present when Mr Paisley Jnr asked his question on politicisation in that regard. What are your views on political input to the appointment of judges? For example, Mr Paisley Jnr is a member of the Northern Ireland Policing Board, which will be appointing a new Chief Constable in a few months time. The board includes lay members, independent members, and politicians who are appointed under the d'Hondt system. Do you think that that is a helpful model.
Mr Larkin: Mr Paisley raised the question of the influence of politicians, and I responded that politicians are already involved; the question is which politicians? I make the same answer - mutatis mutandis - as I made on the role of the judiciary. In this case, the role of the respective party, which includes the politicians, is set out and clearly delineated. That is an improvement. Hitherto, appointments took place in conditions of relative secrecy. It is widely known that there was dissatisfaction about the obscurity of the appointments process.
Mr A Maginness: Who was dissatisfied?
Mr Larkin: From time to time, dissatisfaction was expressed from all quarters. It certainly included individual members of the Bar.
Mr A Maginness: You made the point that there is a political influence on present appointments - the Lord Chancellor is a member of the Cabinet, the head of the judiciary, and the Speaker of the House of Lords. He is very much a political figure. What are transferring to responsibility for the appointment of judges to judges themselves, as well as some lay members, who will be in a minority and non-political in that they will not be public representatives.
Mr Larkin: There is also the contribution of the First Minister and Deputy First Minister, acting jointly.
Mr A Maginness: Yes, but that will apply only to senior positions, such as the appointment of the Lord Chief Justice and the three Lord Justices. Their only function will be to rubber-stamp the decisions of the judicial appointments commission.
Mr Larkin: I cannot conceive of any bearer of that office regarding that task as a rubber-stamping exercise only, because the appointments cannot happen without them.
Mr A Maginness: Their only power is simply to accept or refuse.
Mr Larkin: Absolutely.
Mr A Maginness: What will happen if they refuse and judicial appointments commission proposes the same candidate again?
Mr Larkin: In those circumstances, one enters the realm of the constitutional practice as opposed to what might be the statutory outcome. It is difficult to imagine that such a situation would represent a minor constitutional crisis.
Mr A Maginness: Does the Criminal Bar Association have any objection to a political influence, such as that which applies in regard to the policing board?
Mr Larkin: We have no objection to such an influence.
Mr A Maginness: Would you be supportive of that?
Mr Larkin: We have taken no corporate view in favour of it, but we not taken a position against it.
Mr A Maginness: Finally, would it be better to have politicians in the place of lay members?
Mr Larkin: My colleague said - I hope audibly - that that depends on the politicians.
Mr A Maginness: If it were Ian Paisley and I?
Mr Larkin: Of course, this is a situation where one is tempted to emulate the American practice and take the fifth amendment. It all depends. Sometimes there is a tendency, particularly in this society, to regard the politician as some kind of pariah with whom nice, middle-class people could not possibly associate. The health of any society depends on the health of its political life, and, ultimately - whether or not people like it - politicians take these decisions. That is the practice throughout the Western World and the sooner we face up to that the better. Our concern is that these appointments should be made transparently and openly, and according to a well-defined process.
Mr Paisley Jnr: I was interested in Mr Maginness's point about the Chief Constable, assistant chief constables and chief superintends, and I am sure that he welcomes the fact that the First Minister and the Deputy First Minister do not rubber-stamp or appoint those people.
Mr Larkin's point about youth conferences is important. We did not hear about that issue from the Probation Board. If the diversionary conferencing were agreed and implemented, would that constitute a criminal record for the offender?
Mr Sayers: We would seek clarification on that, because it is not clear from the Bill. There is provision for the fact that a child has been subject to a youth conference being raised in subsequent criminal proceedings. We wanted to find out the intention behind that. It is unclear on whether the incident would have to be stated in a job application form, or on how it would otherwise fit in to the rehabilitation of offenders scheme. It depends on whether all the fair trial safeguards that go towards providing that the admission of an offence that leads to a youth conference would be secure.
Mr A Maginness: In regard to prosecutorial fines, there is no conviction if there is a fine.
Mr Paisley Jnr: That is right. There is ambiguity about the youth conferencing aspect, and in regard to criminal justice in the Bill. Are you concerned that those ambiguities would cause problems if the Bill were implemented in its current form.
Mr Larkin: Where there is a de facto finding of guilt, but one that does not comply with article 6 of the Convention in that it cannot be a finding of fact by an independent and impartial tribunal, there is no conviction.
Mr A Maginness: No conviction,
Mr Larkin: I will ask Ms McNally to comment on the element of the Bill relating to the law commission.
Ms McNally: The association would welcome the reforms as set out in the Bill in relation to the new law commission. It proposes a new commission dealing with civil law, which is dealt with at the moment, and criminal law also. In principle we feel that that is very desirable. Our only concern is about funding. We do not want to get into too much detail on that, but if we want this to work, it has to be properly resourced at all levels. It is envisaged that the work will include research, reviewing the current state of law, and bringing us into line with other local jurisdictions. That important work must be carried out, therefore resourcing is an issue. - [Inaudible]
Mr Larkin: We are grateful to have had the opportunity to offer ourselves to the Committee as sacrificial lambs. We hope that the Committee found this meeting useful. This is the first time that the Criminal Bar Association (NI) has spoken to the Ad Hoc Committee on criminal justice reform. It will not be the last time that criminal justice is discussed in these corridors. The Criminal Bar Association (NI) looks forward to continuing to engage in that process.
The Chairperson: Thank you for your time, which, I note, you gave up for free.

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APPENDIX 4

WRITTEN SUBMISSIONS FROM THE PARTIES

Alliance Party 89

Democratic Unionist Party 95

Sinn Fein 101

Social Democratic and Labour Party 127

Ulster Unionist Party 139

Alliance Party

General
Within the limitations of their terms of reference (which excluded policing and emergency legislation), the Review Group has produced a report, which if fully implemented in all its recommendations, will have a far-reaching and constructive impact upon the Criminal Justice system in Northern Ireland.
We are impressed by the fact that the report is strongly set in the context of international standards of human rights and fully anticipates the Human Rights Act (incorporating the European Convention on Human Rights) which is due to become law in October 2000.
While we are in agreement with the overwhelming majority of the recommendations in the report, particularly with regard to the Prosecution, the Courts, the Judiciary, Victims and Witnesses, we have some reservations in the areas of Restorative and Reparative Justice.
We also feel strongly that the Probation Board for Northern Ireland should be retained in its present form and should not be converted into a Next Step Agency, as recommended in the Report.
We set out below our detailed comments using the headings of the relevant chapters in the report.
Rights and Principles
We note with satisfaction the assertion that respect for human rights and dignity should be the core value of the criminal justice system and that the principles, and values of the criminal justice system in Northern Ireland should be founded upon and meet internationally recognised standards. It is also reassuring to note that international standards of human rights have guided the Review Group throughout their work.
We welcome the recommendation that human rights issues should become a permanent part of training programmes for all those who work within criminal justice agencies, the legal profession and the relevant parts of the voluntary sector.
Recommendation 5 of the report states:
We recommend that the Criminal Justice Board and its research sub-committee be tasked with developing and implementing a strategy for equity monitoring the criminal justice system as it affects categories of people, in particular by community background, gender, ethnic origin, sexual orientation and disability; whilst ensuring that this is done in a way that does not compromise judicial independence.
The Alliance Party urges the Government to go further than simply monitoring the criminal justice system as it affects these categories. We have already presented a paper to HM Government calling for the introduction of Hate Crime legislation to allow for the enhancement of sentences where bias against victims meeting the categories set out above can be established as a material fact in court. In this way, the criminal justice system can take a proactive role in bias against persons based on their community background, gender, ethnic origin, sexual orientation or disability.
The Prosecution
We are pleased to see the recommendations in this area, which are long overdue. As the report generally recognises, it is most important that in a deeply divided society like Northern Ireland, fairness and independence of the prosecution should not only exist but be clearly seen to exist.
In that context, we strongly endorse the recommendation for a new Public Prosecution Service to take over all prosecutions in Northern Ireland including those hitherto dealt with by the police with arrangements being made for the integration into the new Service of the staff of the Central Process Offices in Armagh and Derry. In our view the recommendations generally regarding the prosecution admirably provide for its independence, accountability and transparency. It is clearly right that the investigative function should remain essentially the responsibility of the police.
We observe with approval the recommendation that the powers contained in Article 6 (3) of the Prosecution of Offences (Northern Ireland) Order 1972 be retained. We also welcome the recommendation that Article 6 be supplemented with a provision enabling the prosecutor to refer a case to the Police Ombudsman for investigation where he or she is not satisfied with an Article 6 (3) response. It is right too that as recommended a duty should be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully and completely investigated. In our view, the Police Ombudsman should carry out any such investigation. It is also our view that in the event of the prosecutor exercising his or her discretion to use in court evidence, which has been obtained by police malpractice, an obligation should rest on the prosecutor to inform the defence at an early stage that the evidence was so. It is right that the defence be so forewarned so that they can take any steps they consider appropriate to attempt to have the evidence excluded.
We welcome the recommendations, which seek to improve the system currently operated by the police for diverting offenders away from the court process, e.g. by way of warning or caution. If the recommended prosecutorial fine is to be adopted then in our view, the offender must always be given the option of going to court.
However, it should be noted that there is a general crisis of confidence in the criminal justice system in Northern Ireland in that the rule of law has not been upheld and seen to be upheld especially in relation to the challenges posed by institutionalised paramilitarism in the form of paramilitary attacks (colloquially known as so-called `punishment beatings and shootings), racketeering and drug-dealing. These problems also include the erection of flags promoting illegal paramilitary organisations and painting, and open paramilitary displays, and from disputes surrounding parades and associated illegal blocking of roads. There is a need for a co-ordinated approach for enforcing the law, especially in these respects, in which not only the police but the prosecution service can play an important role.
Courts and the Judiciary
In this area, we particularly welcome the recommendation for the establishment of an independent Judicial Appointments Commission, the structure and manner in which it would operate and also the procedures and machinery, which are recommended to be adopted on devolution of responsibility for judicial appointments.
It is also important, as the Report indicates, that efforts are made to broaden the traditional composition of the Judiciary in Northern Ireland to make it more reflective of the community, including in terms of gender, consistent with the overriding requirement of appointment on merit.
We are glad to see the Report's endorsement of the view that extensive experience of advocacy should not be regarded as a prerequisite of success in a judicial capacity and that practice and/or standing requirements for recruitment to all levels of the bench should not differentiate between barristers and solicitors. We agree that while experience and ability as an advocate may well be an indicator of suitability for judicial office, litigation experience would be of equal significance. We also agree that acquisition of silk (appointment as a QC) should not be a pre-requisite of appointment to the High Court bench.
We do not believe that this change to appointments to the Judiciary by Commission should take place only when justice functions and legislative capacity has been devolved to the Northern Ireland Assembly and Executive. The recommendation of the creation of a commission goes a long way in ensuring a more transparent appointment process. Such a commission should not then await further developments of the political process but should be put in place now.
We agree with the recommended modern judicial oath to be sworn at appointment to the bench and with the recommendations aimed at making the courts more user-friendly, through the removal of signs and symbols that can be construed as "unwelcoming".
The Report rightly emphasises the importance of judicial training both on induction and an ongoing basis. Such training should be mandatory.
As many academics have noted, Northern Ireland Courts have adopted an overall restrictive approach to arguments invoking the ECHR. In light of this history combined with the incorporation of the Human Rights Act of 1998 and the forthcoming introduction of a Northern Bill of Rights, it is imperative that Northern Ireland judges place human rights ant the heart of their deliberations. Training will enable this necessary shift in attitude and as such must be strongly encouraged for sitting judges.
The Report rightly recognises that in the Northern Ireland jurisdiction, there should be no change from the current system in Magistrate's Courts where a professional lawyer, acting as Magistrate, sits alone in adjudicating at summary adult trials. We agree that Resident Magistrates should be renamed District Judges.
We consider it to be of the utmost importance that jury trials are retained in criminal cases. However, we concur with the Report's view that there are aspects of jury trials that should be reviewed including inter alias measures to prevent intimidation of jurors and the role of juries in particular classes of case.
We wholeheartedly endorse the recommendations of the report in regards to courts. The simplification of dress worn in court and the use of language easily understood by lay people will help, we hope, to make the administration of criminal justice much more accessible and understandable by the general public. The assumption of full responsibility for security by the Court Service, the removal of all symbols in the interior of courtrooms, and the facilitation of interpreters will ensure that the courts are a more welcoming environment for people regardless of their community or ethnic background. With respect to the flying of the Union Flag, we agree that it should continue in line with the practice to be established by the Secretary of State. Our position on this matter is contained in our letter to the Secretary of State.
We agree generally with the recommendations in this area. In particular, we strongly endorse the Review Group's view that they cannot support schemes which act outside the criminal justice system and are not linked to the criminal justice system.
As such we are in full agreement with paragraph 9.96:
We are also aware there can be a thin line between voluntarily agreed measures where an offence is committed on the one hand, and community-based schemes that effectively determine guilt and impose sanctions. These concerns do not mean that the state should ignore, or worse still, seek to stifle the undoubted energy and commitment of those in the community who wish to make a real contribution to dealing with crime in their locality. Nor is it for us to comment on those schemes that are directed at dealing with non-criminal behaviour, such as the mediation of civil disputes. It does, however, mean that those within the community who wish to contribute to the way in which criminal activity is dealt with should work in partnership with, take referrals from and be subject to accreditation and monitoring by the criminal justice system if the rights of individuals, both offenders and victims, are to be protected and upheld.
As is indicated in the Report, community restorative justice schemes, especially for juveniles and young offenders, can have a role in dealing with low level crime as long as they are clearly linked to the criminal justice system. It is preferable that custodial sentences should be avoided where possible, given not only the costs concerned, but also the poor record of detention centres in reforming young people.
However, in Northern Ireland, there has been a long, sad history of non-state bodies, i.e. paramilitary organisations trying to engage in community policing activities. People have been targeted without regard for due process under the law. Claims of anti-social or criminal activity have not been substantiated; often persons have been singled out for crossing the paramilitary godfathers. The so-called punishments are barbaric and constitute torture. In essence, these organisations act as judge, jury and executioner and have no regard for international human rights standards.
It is this legacy that creates suspicions over many restorative justice schemes in Northern Ireland, particularly bearing in mind that many of them are operated by people formally and currently associated with paramilitary organisations and presently function in isolation of the criminal justice system.
Accordingly, there are fears that either victims or offenders could be or feel directly or indirectly coerced into participating in restorative justice schemes. Participation needs to be demonstrably voluntary and transparent. Furthermore, there is a need for those working such scheme.
We do not feel that the relationship between restorative justice schemes and the criminal justice system can be allowed to grow organically as suggested by the Committee on the Administration of Justice (CAJ) in their response to this Review.
While appreciating the reasoning behind the conditions set out in the Report for recognition of community restorative justice schemes and our own arguments above, we feel it is important to make every reasonable effort to bring under the umbrella of the criminal justice system as many such schemes as possible. The Probation Board for Northern Ireland with its long experience of working with juveniles and young offenders in the community could be used to link existing schemes with the criminal justice system.
Restorative Justice schemes are important in offering victims some form of redress as well as re-integrating offenders back into the community. These benefits are clearly recognised and articulated by the Report. It is surprising then that the Report envisages such benefits as apply only to the juvenile system. We would urge that the whole of the criminal justice system adopt restorative justice schemes where appropriate and feasible.
Community Safety
We applaud the recognition by the Report that Community Safety encompasses more than the concept of crime prevention but is a wider approach that works best when applied to a variety of organisations. While agreeing that the best programmes will be local ones, we suggest that for community safety be given more prominence amongst government agencies by asking all agencies and departments to carry out an audit on how they contribute and can contribute to community safety. This would be along the lines as the submissions required by the Equality Commission from public bodies of Equality Schemes.
Sentences, Prisons and Probation
While we generally agree with the recommendations in this area we would register a very strong objection to the recommendation that, on devolution of criminal justice matters, the Probation Service should be reconstituted as a Next Steps Agency. We do not believe that a sufficient case has been made in the Report to warrant such a reconstitution.
In fact many important factors point to the necessity of ensuring that the Probation Service does not become a Next Step Agency and remains a non-departmental public body with its statutory commitments.
Over the years and in particular since its constitution into its present form in 1982, the Probation Service has been perceived and as has been an independent organisation with ample accountability through its annual reports and business plans, etc. Working with and in the community, it has successfully gained the trust and respect of all sections of the community. In the context of a divided society in Northern Ireland this trust and respect has been hard won and is invaluable. Such trust and respect is in grave danger of being eroded if not lost if the recommendation to reconstitute the service as a Next Step Agency is accepted.
Victims and Witnesses
We agree with the Report in its adoption of many of the recommendations in Speaking up for Justice. Under the current criminal justice system, victims are failed by often feeling left out, unimportant, and even non-existent. As such, we endorse the recommendations designed to inform victims on the progress of their cases and the release of prisoners back into the community. However, we would like to point out how under-resourced victim support schemes are, leading to a lack of adequate training and personnel. More funding must be applied to give victims the support they deserve. Victim support, as of right, should be fully funded by central government.
Law Reform
We welcome the recommended establishment of a Law Commission for Northern Ireland which would keep under review criminal and civil law, including procedure and practice, and to make recommendations to the Government on whatever changes it considers necessary or desirable. We agree that the establishment of such a commission should not be contingent upon responsibility for criminal justice matters being devolved to the Assembly.
Department of Justice
The Alliance Party have for a long time been advocates of the eventual devolution of criminal justice functions to a Minister in a Northern Ireland Executive through a Department of Justice. While, we do not believe that local politicians should be interfering in the operational matters of the police, we do believe that such structures should substantially enhance democratic accountability and introduce a sense of cross-community and democratic ownership of the criminal justice system.
Therefore, we are pleased that the Report indicates that criminal justice functions should eventually be devolved and exercised through a Department of Justice.
We also endorse the suggestion for a Criminal Justice Board to provide `joined-up' government in the realm of criminal justice.
Conclusion
The Report is important and must be commended for its recommendations to reform the criminal justice system. Many of its suggestions are long overdue and should help foster a system that is seen as more transparent, more representative and largely independent of political pressures. The changes to the Prosecution, taking all prosecutions away from the police, the creation of a Judiciary Appointment Commission, the publishing of codes of practice and the establishment of human rights at the heart of the system all contribute to a more independent and open Criminal Justice system. We particularly endorse the approach taken on restorative justice schemes and urge that these recommendations are not watered down. Keeping this in mind, we urge the retention of the Probation Board as a non-departmental public body, ensuring this body's independence from political pressure.
The recommendations should also help refine the system in making it more accessible and more understood by the general public whether or not they are ever involved with its processes. It is hoped such openness and transparency will form a model for operations throughout the government. The efforts of the Review committee must then be recognised and implemented as speedily as possible

THE ALLIANCE PARTY
September 2000

DEMOCRATIC UNIONIST PARTY

Introduction

The Democratic Unionist Party notes that the Criminal Justice Review was established by the Northern Ireland Office, in response to provisions contained in the Belfast Agreement. We further note that the Criminal Justice Review was required to take account of the aims of the criminal justice system, one of which was to 'have the confidence of all parts of the community'. We believe that the Review Implementation Plan, along with the draft Justice (Northern Ireland) Bill, taken as a whole, will not in fact enjoy confidence within the unionist community in Northern Ireland.
The Party is conscious of the remarks of the Secretary of State contained in his foreword to the Criminal Justice Review Implementation Plan where he states 'the review has made a major contribution towards achieving the objectives of the Belfast Agreement, and the Government now intends to give practical effect to the ideas which it contains'. In light of this we are concerned that the views of those parties who do not support the Belfast Agreement will be ignored. Indeed it would appear that the Government has already commenced implementation of the Criminal Justice Review Plan regardless of any views it may obtain during the consultation period.
As a Party we are concerned at the length of time available for consultation on the reform proposals for the criminal justice system. Originally running until 12th December, allowing only 30 days to give a considered response to a draft bill with over 80 clauses and an implementation plan with some 150 pages is totally unsatisfactory. The extension of the period by the Parliamentary Under-Secretary of State, Des Browne until 7th January 2002 while welcome begs the question why the consultation period could not have been eight weeks duration in the first instance.
Areas of Comment
The DUP wishes to make clear that where no comment is made that should not be interpreted as an acceptance of any proposals or clauses.
Human Rights and Guiding Principles
The criminal justice system must be both just and efficient. The emphasis should be on the protection of the community from those who would pose a threat to it, regardless as to where the threat may originate. Often this can pit the system against the wishes of elements of the community, with individuals and groups attempting to cherry pick the law, deciding to observe those laws, which suit, and ignoring others. The criminal justice system must ignore such views and impartially administer the laws as determined by the legislature. An efficient system will ensure that criminal prosecutions are not subject to undue delay. If the voluntary sector can usefully contribute to a just and efficient justice system then their voice should be acknowledged but not given a special position within the system.
Judicial Independence must be upheld. The Democratic Unionist Party does not wish to see any training schemes imposed upon the Judiciary by Executive agencies. This would clearly interfere with the independence of the bench.
Para. 3.55 Bursaries for Legal Training
We welcome the continuation of legal bursaries as necessary to ensure that access to the legal profession is not restricted to those of sufficient means. However restriction to forty fee only bursaries for the Institute of Professional Legal Studies is considered too limited.
Para. 3.67 Public Information and Education Strategy
The party welcomes the idea of greater public awareness of the criminal justice system. In order for promotion of the system to be effective any public information strategy must be fully funded. The DUP notes the potential inclusion of Criminal Justice in the school curriculum and agrees such a move may heighten awareness amongst young people in this field.
The Prosecution

Para. 4.130 Investigation to Remain with the Police
The party believes that the separation of prosecution and investigation more clearly defines the role of the Police and other agencies within the entire system. It is important that the operational decisions regarding investigations are left with the police whilst the decision to prosecute lies with Prosecutors working to clearly defined criteria. While the Implementation Plan appears to accept that it should be the sole responsibility of the Prosecutor to formulate and determine charges we believe that the draft bill does in fact leave responsibility in this area to the Police.
Para. 4.127 Single Independent Prosecuting Authority
The new Public Prosecution Service for Northern Ireland, envisaged by the draft bill (Part 2 Clause 27) is intended to be a single, independent prosecution service responsible for undertaking all criminal prosecutions. The DUP is extremely concerned that we are about to repeat fundamental mistakes made in England and Wales, in relation to the workings of the Crown Prosecution Service, as outlined in the Glidewell Report. The Glidewell report highlighted defects in the organisation and operation of the CPS. It stated that the CPS was too centralised and bureaucratic, despite the fact that prosecution is an essentially local process; the volume of lower-level work was highly demanding on CPS resources; the CPS was, at least initially grossly understaffed; many of its staff were inadequately trained; in the relationship between the police and the CPS there was a tendency for one to blame the other for weaknesses in performance; and the most senior lawyers were expected to devote the majority of their time to management - the top 400 lawyers spent less than a third of their time on casework and advocacy. We note that para. 4.183 of the Criminal Justice Review directed attention towards the conclusions of the Glidewell Report.
The establishment of the PPS must be properly supported and resourced. We note that the present Office of the Director of Public Prosecutions suffers such pressure of work that, despite its legal staff having rights of audience in the magistrates' courts and Crown Court, it frequently instructs independent counsel to conduct cases in those courts. Without properly examining the lessons to be learned from England and Wales we will create problems in the role of prosecution that we previously avoided. At this time we do not believe that sufficient resources are available to deliver any of the changes identified in this area.
Para. 4.155 Awareness of Diversion
The DUP notes recommendation 40 of the criminal justice implementation plan that seeks to create awareness of diversionary schemes. In relation to the prosecutorial fine we believe that if such a fine is to be adopted then the offender must always be given the option of going to court.
Office of Attorney General
The DUP accepts, in principle the appointment of an Attorney General for Northern Ireland. We are not however persuaded that the First and Deputy First Minister should make such an appointment as is envisaged in the draft bill (Part 2 clause 20(2)). These and other issues are of course subject to the devolution of justice and the party will reserve its position in this area while justice remains a reserved matter.
The Judiciary

Para. 6.84 Merit Principle
We believe that merit must be the guiding principle applied to a properly qualified applicant to the Judiciary in Northern Ireland. Freedom from political interference in the appointment process or beyond is a key element upon which to base a successful judiciary.
We note with interest the evidence given to the Ad Hoc Committee on Criminal Justice Reform by the Law Society of Northern Ireland in relation to the potential the reform proposals have for politicising the legal profession. In response to questions pertaining to the danger of politicising the legal profession the Law Society replied 'we are making this point because we see that there is a potential risk. We are not in a position to say that the proposals answer our fears and concerns'. The Law Society further added 'where a department of justice is being created and where the role of the Lord Chancellor is being removed - as seems to be contemplated from the constitutional arrangements that are part of these proposals- important questions must be asked as to who makes decisions about the legal profession. Under the present constitutional arrangement, solicitors are officers of the court. For that reason when it comes to matters arising within the Law Society that require to be appealed, the supervisory function is not carried out by a politician. It is in the hands of the Lord Chief Justice; and we would want to be clear that that is going to be preserved, or indeed, enhanced and reinforced'. (Minutes of Evidence, Thursday 29^th November 2001, pages 12-13)
We agree with the Law Society when they express the view that 'we need to ensure that the new constitutional arrangements do not impinge on the independence of the legal profession. It is a question of preserving the independence, rather than creating it'. (Minutes of Evidence, Thursday 29^th November 2001, page 11)
Similarly in his evidence to the Ad Hoc Committee Prof. Brice Dickson, Chief Commissioner, Northern Ireland Human Rights Commission indicated 'there is always a danger that when a member of the Government has a large say in how an agency within the criminal justice system, or the justice system itself - because the Law Commission here will have jurisdiction over civil as well as criminal matters - the doctrine of separation of powers is breached'. When asked whether the proposal for an agency like the law commission was unsatisfactory because it does or could over-politicise the criminal justice system, Prof. Dickson replied 'Yes. It would not be unfair to say that'. (Minutes of Evidence, Thursday 29^th November 2001, page 41).
The DUP does not wish to see the politicisation of the criminal justice system. We support the independence of the judiciary and the legal profession and are concerned that the proposals outlined in the draft Justice (Northern Ireland) Bill will in fact lead to the politicisation of the system.
Para. 6.102 Judicial Appointments Commission
The Party regards the proposed arrangements for judicial appointments as needing amended in several respects. This does not preclude the establishment of the Judicial Appointments Commission, which could operate prior to devolution of justice matters. The First and Deputy First Ministers will appoint the Commission membership under the Draft Bill (Clause 3(2)(b)). We believe a better way of ensuring widespread representation on this Commission would be to allow political nominees to fill the lay places. These places could be distributed on a similar basis to that of the Police Board. These nominees would sit alongside members representing the various branches of the legal system.
Clause four of the draft bill requires the Prime Minister to consult the First and Deputy First Minister before making recommendations to Her Majesty The Queen as to who should fill the posts of Lord Chief Justice and Lord Justices of Appeal. We would wish to see this procedure extended to appointments of High Court Judges. It is currently envisaged that the Appointments Commission would advise the First and Deputy First Ministers in the consultation process between the First and Deputy First Minister and the Prime Minister for appointments. However, we see no reason why a Judicial Appointments Commission could not advise the Prime Minister directly in relation to these matters.
Para. 6.97 Cross-Community Voting
We note that the Implementation Plan accepts the recommendation that upon devolving of responsibility for judicial matters no vote, resolution, or Act of the Assembly should be valid unless it has cross - community support. We believe this cross - community support must be measured by means of parallel consent, i.e. a majority of those members present and voting, including a majority of unionist and nationalist designations, as stated at the point of election, present and voting.
Para. 6.128 The Oath
The DUP regards recommendation 96 of the Implementation Plan as needless political interference and believes it to be another attempt to politically appease a small, vociferous minority. We would point out that we were told that the Belfast Agreement and subsequent Northern Ireland Act 1998 retained Northern Ireland as part of the United Kingdom. We further note that neither the Implementation Plan nor the draft Bill proposes the removal of the Sovereign's role in the appointment process. Therefore we see no merit in ignoring the constitutional reality by interfering with the Oath.
Other Issues
The DUP notes, with concern the number of positions that will be created under these new structures. We are of the view that in a province with a population of some 1.7 million people there is little justification for so many supervisory and administrative positions.
Lay Involvement in Adjudication

Para. 7.3 Jury Trials
While we believe in the principle of trial by jury, the DUP does not believe that the Diplock Court system can be disregarded at the present time. We strongly support measures to prevent the intimidation of jurors.
There has been Lay involvement in the lower courts here for well over a century. We welcome any proposals to afford training to the lay bench and recognise that this will place the administration of the criminal justice system onto a more professional footing.
The appointment of lay people to adjudication panels brings relevant non-legal expertise to the bench. This can only be of benefit to the system.
The Courts
The DUP is unhappy with most aspects of the Review Group's recommendations in this area. We believe them to be politically motivated and of no function as far as improving the efficiency of the criminal justice system is concerned.
Para. 8.49 Reception and Waiting Areas
We support the need to make court buildings more accessible for the disabled. We further support the need for better facilities such as refreshment and waiting areas.
Para. 8.52 Simplification of Dress
The dress and language of lawyers who operate the criminal justice system falls outside the scope of the Review Groups' terms. The review was of the criminal law yet the recommendation to "simplify" court dress has over spill into the practice of civil law. Traditional court dress is perceived, we believe, as an integral and non-controversial part of the system. Wigs and gowns, apart from being a "trademark" of the Bar, are part of the popular image of the Court system and do more to enhance it than to alienate it from the society it serves.
Para. 8.59 Irish Language
The DUP sees no reason to promote this language in the courts over languages such as French, German or Ulster-Scots. It seems sensible to use the English language in Court, as it is the only language that everyone in the Province speaks and understands. The DUP condemns those who would seek to use languages as a political tool.
Para. 8.62 Symbols
Northern Ireland remains part of the United Kingdom by the democratic choice of its people. We are therefore appalled by the proposals to follow practice in other jurisdictions where sovereignty has changed hands by removing the Royal Coat of Arms from courtrooms. Removal of the Royal Coat of Arms from courtrooms would leave upwards on fifty percent of courts in Northern Ireland devoid of any Royal symbols. The Crown is the source of justice and, more importantly, justice is administered on its behalf in court. We do not believe that the Royal Coat of Arms is 'off-putting' to those within the criminal justice system but we can categorically state that its removal by Court Service personnel would cause great offence.
Recommendation 141 of the Implementation Plan and included within the provisions of the draft bill as clause 62 is petty, inconsistent with the reality and theory of the courts and blatantly political. One should balance the imaginary offence caused by the presence of the Royal Arms to the real offence, which would be caused by its proposed removal. As with the proposals for court dress we would point out that this was to be a review of the criminal law. Courtrooms used for civil and criminal cases will be equally affected by this recommendation if adopted.
The Review Group notes that 'there should be no change in the arrangements for displaying the Royal Coat of Arms on the exterior of existing courthouses' (Recommendation 141). This would, of course, leave new court complexes without any Royal symbol. It is clear that the proposed new arrangements will immediately strip the inside of courts and clause 62 of the draft bill is designed to gradually eradicate the Royal Coat of Arms from the exterior of courthouses by backdoor means. The Democratic Unionist Party rejects the proposed changes in this area as nothing more than a nationalist agenda unsupported by the Review Group's own research. We will seek the retention of the Royal Coat of Arms both inside and outside courthouses in Northern Ireland.
On the issue of the flying of the Union Flag we believe it should fly at Courthouses on a permanent basis. While it would be a poor second alternative we believe that the flag must at least be flown on the same designated days as presently practised at other Government buildings.
Para. 8.63 Royal Declaration
We take a similar view of Recommendation 142. This is at the discretion of each Judge, is seldom uttered and need not be outlawed. We regard this recommendation as being both unnecessary and politically divisive.
We look forward to Her Majesty's Government reviewing its decisions in this area. The DUP notes the recent remarks of the Secretary of State during his speech in Liverpool. We trust he intends to take action to stop the 'cold house effect'.
Restorative and Juvenile Justice
The DUP agrees with many of those who gave evidence to the Ad Hoc Committee on Criminal Justice that "community restorative justice" schemes as outlined in this review are not properly thought out. Their purpose and remit are both extremely vague and unclear.
In the area of Juvenile justice we remain unclear as to who will be responsible for the administration of this. Under this scheme it is uncertain as to whether the juvenile will receive a criminal record on attending a youth conference. We would caution against rushing into schemes without giving proper thought as to their practical outworking. The DUP is concerned at the apparent lack of procedures or guidance the Public Prosecution Service or the courts should follow in deciding whether to follow a restorative rather than conventional sentence.
Victims and Witnesses
The DUP believes that victims are often failed by the criminal justice system. To that end we endorse principles that are designed to inform victims of the progress in their cases and of the release of prisoners back into the community. As a party we do not support the early release of prisoners. Those who commit the crime must serve the time. Again many of the recommendations for the benefit of victims will be dependent on the resources available.
Law Reform

Para. 14.51 Law Commission
In general we welcome the recommended establishment of a Law Commission. This would bring NI into line with the rest of the UK in respect of reviewing criminal and civil law, including procedure and practice, and making recommendations where necessary. The establishment of such a commission should not be contingent upon the devolving of justice matters.
Organisation and Structure

Para. 15.56 Devolution of Criminal Justice Functions
The DUP notes the proposal that a broad range of criminal justice functions should be devolved to the Assembly, and that these could be the same as are currently devolved to the Scottish Parliament. However we further note the response of the NIO on this matter where they state that 'A final decision to devolve these functions can only be taken at the time taking account of security and other relevant considerations.'
As the second largest party in Northern Ireland since June 2001 we would wish to be consulted on matters relating to the devolution of justice functions when and if the situation arises.
Next-Step Agencies
The DUP is alarmed at the prospect of downgrading the role of the Probation Board and its re-establishment as a Next-Steps agency. We do not believe that a sufficient case has been made for this reconstitution or that such a proposal will be workable.
Other Issues
Clearly there are a number of other issues contained within the Plan and the Draft Bill. We are actively considering these areas and will further respond to Her Majesty's Government in relation to these and subsequent matters in due course. We do however see merit in the establishment of a Criminal Justice Standing Committee at the Assembly for the purposes of reviewing various criminal justice measures and the process of the criminal justice reform.

DEMOCRATIC UNIONIST PARTY
January 2002

SINN FEIN

Executive Summary

Some of the areas of major concern to Sinn Fein can be summarised as follows:

As already stated the review itself initially suffered as a result of being driven by the NIO. Even a cursory reading of the draft bill and implementation plan would show that the British government have further diluted an already weak review and have undermined some of the key proposals made in the review. This can be seen most clearly in the area of the Prosecution, Judiciary, Human Rights and Equality. All of these are at the heart of the criminal justice system and radical overhaul is required but will not happen if these legislation and implementation plans are driven forward in their current form. The original review report contained no analysis or acknowledgement of the extent of nationalist alienation from the system. There has been no serious attempt to address these concerns in the implementation plan.
There was no review of the past performance of any of the existing criminal justice agencies in relation to the conflict. This was further exacerbated by the fact that some of the people sitting on the review were civil servants responsible for the oversight of some of these agencies. This immediately discouraged nationalists seeking any fundamental change to the delivery of criminal justice.
While the Review team made no recommendation in relation to appointment of an oversight Commissioner Sinn Fein would support the proposal made by the Committee on the Administration of Justice and the Human Rights Commission that such an appointment should be made. This is would be logical given the broad range of issues, the number and scope of the recommendations and the fact that it covers a broad range of agencies. An oversight commissioner was required to implement the Patten recommendations and would make sense for the criminal justice review.
All recommendations are left to existing agencies to implement i.e. the NIO, court service, prison service etc. All have been an integral part of the problem. A major problem has been the lack of transparency and accountability within these agencies and that seems certain to continue.
There are no clear targets and timetables for the implementation of these recommendations or indeed the monitoring of the implementation. Agencies are left to this if and when they see fit. There are a total of 294 recommendations. 96 are dependent on legislation for implementation; 14 are subject to devolution; 21 are subject to both legislation and devolution. Only 50 of the recommendations have stated timetables. These are fairly minor elements such as research; review of existing policies etc and many of these timetables have already slipped. The British government states that it has accepted 236 of the recommendation but closer inspection shows that they have not indeed accepted them. One pertinent example is the recommendation from the review group that the DPP should give reasons for failure to prosecute. The NIO states that it has accepted this but reading into it is clear that they have done the opposite. A further 50 recommendations have been accepted in principle only. When, if and by whom will they be implemented?
The draft Implementation Plan proposes to give far too many powers to the secretary of state and the British government. For instance the British Secretary of State also appoint chief officers of the criminal justice inspectorate and the members of the Law Commission. The six county Attorney General will have to consult with the Attorney General for England and Wales before appointing senior officers of the Prosecution service after devolution.
There are a range of issues about the human rights and equality proofing of the implementation plan. In relation to human rights training the approach is far too ad hoc given the centrality that these issues were given in the original review. The fact that very few timetables have been indicated in relation to human rights issues is a serious flaw and will delay any major change in this area. The human rights based issues should be implemented now as opposed to having to wait for devolution and/or legislation.
The whole area of representation of the community has been diluted to being 'reflective'. This is unacceptable. There is also no plan or strategy never mind a timetable by which to address the under representation of Catholics in particular within the system. Nothing has been said about representation from any of the other section 75 categories. For instance there is no hope given in the plan to ensure that the civil servants who are responsible for drafting legislation and overseeing the British secretary of States functions will reflect the religious and political make up of the six counties. The same criticisms apply to the recommendations around equity monitoring.
The recommendations around the office of the DPP are one area, which cause grave concern. While this was the area in which there was most potential for change even within the flawed remit of the review the recommendation in the draft implementation plan proposes a simple name change and nothing else. The whole area of giving of reasons for failure to prosecute has been subject to abuse in controversial cases and will continue to be so. Recruitment for the new service has already begun prior to the publication of the implementation plan. This will not serve to raise nationalist confidence any new Prosecution Service nor will it encourage nationalist to apply.
The judiciary are to remain exactly the same and with human rights training being optional rather than compulsory. All the recommendations around the judiciary remain subject to devolution. We are opposed to the proposal that the Lord Chief Justice chair the Commission or have the power to appoint 5 of the other 11 positions. This leaves the Commission dominated and controlled by the Lord Chief Justice. The legislation requires that the lay members must 'so far as possible' be 'reflective' of the community in the six counties rather than representative. Senior Judicial appointments will remain in the hands of the British Prime Minster and the English Queen. We are particularly dismayed that only practising lawyers will be eligible for appointment. There has been no willingness to explore the appointment of legal academics and human rights experts. The judicial oath still contains the word 'realm'. This must be removed.
Codes of ethics/practice are to be left to the individual agencies to develop. There is no timetable for these or any proposal to consult on them or to have them equality impact assessed.
Emblems and symbols. The recommendations make a mockery of the proposal to develop a neutral environment. The fact that the British Royal crest is to remain outside of courthouse (as well as inside courthouses that are listed buildings) is a complete nonsense. The same applies to continued flying of the Union Jack. This needs to be overhauled particularly when one considers that the Review also refused to make recommendations in relation to the name of the Royal Courts of Justice and the Crown Court or the term 'Queens Counsel'.
The proposed new oath still contains a reference to the 'realm'. This wording should be changed to insert the term 'jurisdiction'. The whole issue of the symbols and the oath promote a loyalist/unionist political opinion. This area fails to have regard to the need to promote equality.
The whole area of inquests and coroners courts is of particular interest to nationalists and SF made proposals for substantial transformation of both. This is in no sense reflected in the implementation plan. We believe that the proposed review is insufficient. It is based on the review of the inquest system and will not focus on the problems and inadequacies of the system as it has operated in the north. Something more fundamental was required.
The draft bill and implementation plan to make any recommendation about membership of exclusive or oath bound organisations being considered incompatible with employment in or holding office in the criminal Justice system. There must be a register of interests of members of the judiciary, senior counsel and the Prosecution service.
Restorative justice while recognised by the review has been tied to co-operation with the police. Funding will be allocated on this basis. The focus is on a court based system as opposed to a community based one. The plan links the operation of restorative justice as being based on referrals through statutory agencies. Many of these agencies do not have the confidence of the community. Problems around the issue of policing means that this is one of the most problematic areas for nationalists.
The all Ireland element is extremely weak and virtually ignores the reference to this in the Good Friday Agreement. There is no intention of moving towards all Ireland harmonisation in terms of legislation or institutions. At no point is there a role for 26 county legal personnel or institutions. A joint study group is wholly insufficient.

INTRODUCTION
The British government's Criminal Justice Review was established under the terms of the Good Friday Agreement. The review itself fell short of what Sinn Fein had argued for.
The Review team was tasked with addressing the structure, management and resourcing of publicly funded elements of the Criminal Justice System and with bringing forward proposals for future criminal justice arrangements.
Unlike the Commission on Policing, the Criminal Justice Review was largely an internal review conducted by Northern Ireland Office civil servants with an independent advisory element. What this meant in reality was that British government civil servants, serving the very same criminal justice system that has already failed the democratic test of delivering a fair and impartial system of justice, were appointed to spearhead this review process.
The terms of reference were fundamentally flawed from the outset, with repressive legislation and the Diplock non-jury courts being omitted from the ambit of the review.
The unilateral decision by the British government that the Diplock system is to be retained bodes ill for the implementation of the review group's recommendations in relation to the proposed human rights ethos for the criminal justice system. This fear has been borne out in the draft implementation plan.
The Review Group in its report acknowledged the interdependence of criminal justice, policing and emergency legislation: ' We were, however, conscious of the linkages between these three areas and that our efforts to develop proposals for a fair, rights based and effective criminal justice system which inspired the confidence of the community as a whole could not be divorced from the outcome of those separate reviews.'
This was ignored by the British government and has resulted in subsequent flawed reviews, reports and legislation.
The failure to create a new and radically transformed Criminal Justice System that all citizens can support and have confidence in is damaging to the democratic process of conflict resolution that is underway. All the indications to date are that NIO civil servants and politicians have further watered down the recommendations of the review. In fact there has been even further dilution of the recommendations for the transformation of the criminal justice than there was with Patten.
In September2000, Sinn Fein made its formal submission to the Review of the Criminal Justice System, highlighting our serious concerns and asking that they be addressed. It is against this original submission that we measure the proposed implementation plan and supporting legislation.
In summary the draft implementation recommendations were assessed as follows:

96 recommendations are dependent on legislation for implementation.
14 are subject to devolution
21 subject to both legislation and devolution
The NIO claim that 89 of the recommendations are already ongoing
The NIO state that they have accepted 236 of the 294 recommendations made by the Review Group and that they have accepted a further 50 accepted in principle
8 already in place
Only 50 of the recommendations have stated timetables, most of these have already slipped in the timeframe already and none of them are the major areas requiring change.

Initial Limitations

From the outset, the Criminal Justice Review, an important element of the Good Friday Agreement, was less strong than Sinn Féin had argued for. Unlike the Patten Commission, The Criminal Justice Review was a Government Review with only an independent advisory element.
The Criminal Justice review's terms of reference were flawed in that they excluded from their remit a review of emergency legislation and the discredited Diplock Court system. These, alongside policing, have been the political instruments used by successive British governments to perpetrate major human rights abuses in the North of Ireland. Given that these elements were outside the remit of the Review Group, the report could not be anything but fundamentally flawed.
This has proved to be the case since what has emerged from the review are a set of proposals to 'modernise' a system that essentially retains at its heart, the continual denial of human rights and justice. This further reflected in the draft implementation plan.
Only in some places did the Report demonstrate an awareness of the level of nationalist alienation while in some less publicised aspects of the report - in the 'Human Rights and Guiding Principles' section - the report indicates a minimal acknowledgement of past problems. On the other hand, the Review placed much emphasis on the need for public education. The impression given here was that nationalist alienation from the criminal justice system is more about lack of information as opposed to acknowledging that this alienation derives from actual experience of human rights violations by the system under emergency legislation, non-jury courts and a sectarian, partisan police force.
The fact that the British government announced that the conclusion of a review of the Diplock system was that it was to be retained in our view bodes ill for the implementation of the review group's recommendations and for the proposed human rights ethos for the criminal justice system. This is further underscored by the emphasis in Rec. No ? of the draft implementation plan, which stresses the intention to retain Diplock, courts. It does this without any reference to human rights implications not only under international human rights instruments but also the Human Rights Act.
This, coupled with the failure of the Review Group to systematically review and acknowledge the failures of the past resulted in a report that missed a unique opportunity to revolutionise the system.
While many of the recommendations of the review group were welcome, they are being imported into an already fatally flawed system and will fail to instil, especially to those most alienated from the system, total confidence in the criminal justice system.
The Review Group took as part of their terms of reference the aims outlined in the Good Friday Agreement which were to:

"Deliver a fair and impartial system of justice to the community
Be responsive to the community's concerns, and encouraging community involvement where appropriate
Have the confidence of all parts of the community; and
Deliver justice efficiently and effectively"

The Importance of Transformation

The Criminal Justice system in the North is a set of institutions, laws and practices established for the maintenance of the status quo. It has been geared to perform this function in a variety of ways, an obvious one being its well-established counter-insurgency role. But it also performed the task in a more insidious way by an exclusionary process, which meant that the 'obvious' people to appoint to post were loyal unionist males. This strategy meant that if Catholics were appointed to senior posts they would have to be unionists, thus excluding nationalists and republicans while women (even unionist women) were also marginalised.
The process was buttressed by a set of symbols and titles (Union flag, Royal Courts of Justice etc) which served to alienate nationalists and operated as part of a broader project of unionist hegemony: the 'obvious' people to appoint in relation to policing and the senior civil service were also unionist males with an attachment to the same set of symbols.
Good Friday Agreement
It was clear that in the new political dispensation that the Good Friday Agreement promised, this situation was no longer be tenable and that mild reform was insufficient.
Sinn Fein's position is that in order to ensure the maximum confidence of the community as a whole, the old strategies of exclusion, injustice and repression must end. We believe that a 'root and branch' transformation of the Criminal Justice system is essential where the highest standards of justice and respect for human rights are guaranteed. It is by this that we have tested the draft Implementation Plan and the accompanying legislation.
Sinn Féin's response also reflects on the recommended areas of change and the level of change, those responsible for driving that change and proposed targets and timetables.
In assessing the transformative potential of the Criminal Justice Review draft Implementation Plan and legislation therefore, we have kept three considerations to the fore:

The capacity (or lack of it) for swift transformation of elements of the system
The capacity (or lack of it) for putting in train structural changes, over time, to other elements of the system, and
The importance of symbolism, particularly where an extended time-scale is in question
Clear programmes of action with targets and timetables with built in monitoring and evaluation.

A final introductory point relates to the immediate context in which the Criminal Justice Review falls to be judged: that provided by the controversy surrounding the policing issue and the Patten report. Consideration needs to be given to the dangers of some of the more reactionary elements of the Criminal Justice Review Report being read across to Patten, thus diluting the transformative potential not only in relation to criminal justice, but also to policing.

HUMAN RIGHTS AND GUIDING PRINCIPLES
This section of the Implementation Plan contains 16 recommendations. 12 have been accepted. Three have been accepted in principle and one has been postponed for further consideration. The document also claims that all bar one either has a timetable for commencement or is ongoing. Only one (workforce strategy) is dependent on devolution and none are contained in the draft legislation.
In our original submission to the Criminal Justice Review Group under the headings of Rights and Principles Sinn Féin made a number of key recommendations. We emphasised that the delivery of justice must include:

Equality before the law and in all the institutions of the justice system.
A fair and impartial system of justice.
A system which commands the support and confidence of all parts of the community - given that nationalists and republicans have had most difficulties with the system, the emphasis must be on transformation which has a chance of winning that support.
Conform to the highest standards of human rights
Prioritise prevention over prosecution
Periodic review and development.

Sinn Fein stressed that all these principles must be realised in a concrete and comprehensive manner. These are the standards against which we have measured and assessed the draft legislation and Implementation Plan.

Sinn Fein welcomed the Criminal Justice Review's report's commitment to the centrality of human rights in any criminal justice system. The Criminal Justice Review report placed the issue of human rights at the centre of each area of the Criminal Justice system it reviewed. Para 1.10 stated:
"We also believed that we should consider the issues within our terms of reference from a human rights perspective, a perspective that underpins and runs through the Belfast Agreement itself. As a result we have paid a great deal of attention to international and domestic human rights obligations and considered all of the issues before us from a human rights perspective."
However, this centrality is not followed through in terms of the Implementation and in particular the draft legislation. We believe that this has grave implications for the centrality of human rights in the criminal justice system in the future. We are also conscious that the original recommendations of the Review Group were made prior to the incorporation of the European Convention of Human Rights into British legislation in the form of the Human Rights Act that came into force in October 2000. However this has implications for the human rights ethos of the criminal justice system. No evidence is provided to show that the British government human rights tested any of these recommendations. Such a litmus test is not only desirable it is required. The outcomes of such a proofing exercise must be published to allow open and transparent assessment of the British government approach to the human rights legislation. The Review Group had stated that minimum international human rights standards had guided their deliberations and 'we cannot stress too strongly their applicability to all parts of the Criminal Justice system in NI.'
Principles
The draft Bill fails to acknowledge the highly politicised nature of the criminal justice system, including its role in the British government's counter-insurgency strategy in Ireland, its historic lack of political and ideological balance and its inability to enjoy the full confidence of the population. Sinn Fein is of the opinion that a mission statement based on the principles of fairness and impartiality (drawn from UN principles) would represent a step in the right direction.
The Review Group set out in Recommendation 2 the proposed aims for the Criminal Justice system which were set out as follows:
Aim A

To dispense justice fairly and efficiently and to promote confidence in the criminal justice system.

i. Provide fair and just criminal processes and outcomes.

ii. Improve service delivery by enhancing levels of effectiveness, efficiency and co-operation within the criminal justice system.

iii. Make the Criminal justice system as open, inclusive and accessible as possible and enhance and promote public confidence in the administration of justice.

Aim B

To contribute to the reduction of crime and the fear of crime.

i. Work co-operatively to help reduce crime

ii. Reduce numbers of persons re-offending and frequency of re-offending for persistent offenders.

iii. Reduce levels of fear of crime.
Sinn Féin challenged the assertion by the Review Group that criminal justice principles should not be incorporated into legislation. The Review Groups had originally stated that human rights principles for the criminal justice system should be covered by the Human Rights Act and that: 'Instead we suggest reliance on the human rights framework, which is rapidly increasing in importance and influence together with enhanced systems of openness and accountability, a theme running through this report.' The approach proposed in the draft implementation plan does not instil confidence that a human rights ethos will be central to the criminal justice system. This is further exacerbated by the fact that the Implementation plan then relies on a number of non-binding human rights instruments such as the Guidelines on the Role of Prosecutors, which are not applicable under legislation. These guidelines are intended simply to 'provide guides to good practice in the areas which they address.'
Incorporation of the human Rights and Guiding Principles into legislation would give added value and protection to people in terms of seeking redress for human rights abuses and ensuring members of the above-mentioned professions adhere to human rights guidelines and principles. It would also help to ensure openness and transparency in the human rights culture of the criminal justice system. We would therefore recommend that the draft legislation be amended to incorporate the stated aims of the criminal justice system.
While the proposal to publish the aims and criminal justice plan is welcome insofar as it goes, we would stress that this should be done in full consultation and the annual plan should also provide details of the outcomes of the monitoring and assessment of progress.
Some of the Review's recommendations clearly acknowledged past problems and were welcomed i.e.

Developing and implementing a strategy for equity monitoring the criminal justice system, as it affects categories of people, e.g. community background, gender, ethnic origin, sexual orientation and disability (5)
Government responsibility to provide the machinery for an effective and independent investigation of all threats made against lawyers (9)
Training seminars to enable police officers and members of other criminal justice agencies to appreciate the important role of defence lawyers (9)
Human rights issues to become a permanent and integral part of training programmes for all those working in criminal justice agencies, the legal professions and the relevant parts of the voluntary sector (1)

However we stated that under these sections there were flaws in the Review that had wide reaching implications i.e.;

The failure to ensure that the workforce is 'representative' of the community as opposed to merely 'reflective'.
The ongoing confusion of equality v equity. The review group should have made clear their commitment to equality and to Section 75 of the NI Act. This failure has been reflected in the Implementation Plan and draft legislation makes no mention of Section 75 obligations. The Bill must be amended in all sections to reflect this statutory obligation. We refer to the Court Service separate screening and equality impact assessment of some aspects of this review later in this chapter.
Failure to acknowledge and address nationalist alienation from the system and the historical causes for that. This is dismissed as 'perception' and sets the tone for the rest of the report.
Failure to address substantively the whole issue of legal aid and appears to go so far as endorsing British government recommendations contained in their consultative paper. Sinn Fein has serious concerns that some of these recommendations will have serious human rights implications i.e. the right to a fair trial and the right to legal advice of one's own choice.
The review group fails to address the issue of the right to silence or to recommend the abolition of this blatant breach of human rights.

Defence Safeguards and the Legal Profession

We welcomed the original recommendation 3.53 of the Review Group endorsing the report of the UN Special Rapporteur on the independence of judges and lawyers 'that government has a responsibility to provide the machinery for an effective and independent investigation of all threats made against lawyers and note the role of the police ombudsman if such allegations relate to the actions of police officers.' The review group, however, missed an opportunity to go further and make specific, practical recommendations as to how this should be established and monitored. The report also failed to make any recommendations for the establishment of independent investigative machinery. This flaw has been further exacerbated in the draft legislation and implementation plan.
The legislation makes no reference to this recommendation at all. The draft Implementation Plan states that this issue is ongoing under the responsibility of Criminal Justice agencies and further states: ' Threats against individuals fall to be investigated by the police. The Police Ombudsman may investigate complaints about police handling of complaints or allegations relating to the conduct of police officers. The police will be circulating a new directive to cover the role of police and defence lawyers, based on the UN Declaration on the role of lawyers."

Given the controversy surrounding the issue of threats against defence lawyers and the murder of two human rights lawyers this is a missed opportunity on the part of the British government to put in place stringent measures to protect lawyers. The proposal to circulate a directive is wholly insufficient particularly given that there is no mechanism put in place to monitor the implementation of this proposal. Training seminars on this issue are again left to the individual criminal justice agencies to develop and implement if and when they see fit. This section of the Implementation Plan must be completely revised to show a political will and commitment to address this issue in a way that will inspire confidence not only in defence lawyers but also in the community as a whole. The British government approach to this issue must also be revised given the United Nations Human Rights Committee report in November 2001 which referred to this issue: ' The Committee is deeply disturbed that, a considerable time after murders of persons (include human rights defenders) in NI have occurred, a significant number of such instances have yet to receive fully independent and comprehensive investigations and the prosecutions of the persons responsible. This phenomenon is doubly troubling where persistent allegations of involvement and collusion by members of the state party's security forces including the Force research Unit, remain unresolved. The State Party should implement, as a matter of particular urgency given the passage of time, the measures required to ensure a full, transparent and credible accounting of the circumstances surrounding the violations of the right to life in NI in these and other cases."
The Review group recommended that human rights issues should be a permanent and integral part of training 'for all those working in criminal justice agencies, the legal professions and the relevant parts of the community sector'. This was to be welcomed and we advocated that the training be subject to regular review and evaluation. We also argued that appropriate sanctions should be imposed on members of the above-mentioned groups who fail to adhere to human rights guidelines in their practices.
Sinn Fein further recommended that lawyers should be required to do refresher courses on human rights throughout their career and that these should be mandatory. We were therefore deeply perturbed to discover that human rights training is not to be mandatory for the judiciary. The draft implementation plan therefore falls disappointingly short of even the review groups recommendations in that it adopts an almost laissez faire approach to the existing agencies developing human rights training. It is essentially allows the same personnel and bodies that have been systematically indulging in human rights abuses now to introduce their own training if and when they so wish.
Membership of Organisations
This was one of the areas in which Sinn Fein had particular problems. We stated in our response to the Review Group report that we were concerned at their failure to address the issue of membership of oath bound and secret organisations.
The Review group failed to recognise the serious conflict of interest arising when those holding office have given an oath to the Orange Order which is an anti-Catholic organisation anda judicial declaration. The Review Group instead opted for a process of 'self-regulation' and publication of a statement of ethics for each of the criminal justice agencies. The argument posited for this is that the right to freedom of expression and freedom of association are included in Articles 10 and 11 of the European Convention on Human Rights. However any argument about the protections of the ECHR do not prevent the establishment of a register such as has been instituted for the new policing arrangements. At the very least, we wish to see registration of membership of oath-bound organisations with appropriate protection of privacy. However, it will be necessary to publish quantitative information from the register on an annual basis.
Combined with self regulation and the code of ethics the review group recommended that 'If an organisation were, by its policy or its actions, clearly committed to acting contrary to the law or the interests of the criminal justice system then it would be for the criminal justice agencies to make clear that their employees were not permitted to belong to such an organisation.' We believe that this is evading the issue and again fails to take into consideration the make up and nature of the criminal justice system in the north of Ireland. The NIO seized on this failure and further diluted this recommendation. The draft Implementation Plan fails to state what guidelines, criteria and sanctions should be laid down in the case of the above. It also fails to examine how this would work in practice or to make a convincing argument as to why this should work, thus rendering this recommendation meaningless.
The draft Implementation Plan has further delayed dealing with this issue stating that it is for further consideration: ' It is a difficult concept and further work in this area is needed. This will need to cover the necessary distinctions between the actions and policies of an Organisation and those of individual members, and must also take into account the requirements of the European Convention on Human Rights now incorporated into the Human Rights Act 1998, Section 75 of the Northern Ireland Act 1998, and the law concerning employment issues.'
The fact that there is no timetable included for this further work to be done underlines the fact that there is no will to deal with this issue in any meaningful way.
It is also interesting to note that this is the only section of the review in which there is a stated commitment to apply human rights, equality and anti-discrimination legislation to a proposal. Such a rigorous approach was completely absent in relation to the recommendations on equality of opportunity within the workforce and equality of treatment within the system itself.
Equality and Equity
We would argue that equality should be the central tenet for the Criminal Justice System that would lead to everyone coming in contact with such a system being treated equitably.
Sinn Féin believed that this section of the Review report did go some way in acknowledging some of the past problems with the criminal justice system. However, we believe that there is still some way to go. The recommendations and the report were fundamentally flawed by the failure to analyse and document the failures of the past. For instance there is no examination of Fair Employment Commission figures for employment of Catholics, women and ethnic minorities within the criminal justice agencies and legal professions. We are seriously concerned by the attempt within the report to minimise and even dismiss nationalist experience of the criminal justice system.
Such a dismissal of nationalist and republican experience as mere perception flies in the face of well-documented evidence about the employment, treatment and experience of Catholics within the entire criminal justice system. Failure to analyse and acknowledge such evidence inevitably leads to flawed recommendations and proposed outcomes. Not only is this failure reflected in the draft Implementation Plan it is further diminished by a failure to address this issue in any shape or form.
There was some confusion within the report about the definition of equity v equality and how that is applied to structures and mechanisms. This confusion is further reflected in the implementation Plan and no attempts have been made to strengthen the equality aspect of the Review. We would argue that equality should be the central tenet for the criminal justice system that would lead to everybody coming in contact with such a system being treated equitably.
Sinn Féin would argue very strongly that inequality and discrimination have been at the heart of the criminal justice system and all its practices since the inception of the state and these have to be strategically and structurally addressed to ensure fair treatment of individuals.
The Review Group failed to clarify how equality monitoring must be applied to functions, policies, recruitment and procurement and equity monitoring applied to individuals coming into contact with the criminal justice system in relation to charges and sentencing for example. Again this failure is merely repeated in the Implementation Plan ensuring that this section of the documents remains fundamentally flawed.
Sinn Fein strongly urges that the results of monitoring be placed in the public arena and that a real and meaningful consultation process on monitoring and impact assessments is developed under the terms of the statutory duty.
We are concerned at the lack of priority given to the implications of the Section 75 of the Northern Ireland Act 1998 which places a statutory duty on public bodies to have due regard to the need to promote equality of opportunity. The emphasis in the statutory duty is on equality and not equity. The Review group recommendations fell short of this.
We would recommend that the criminal justice system should have in place stringent measures for monitoring and evaluating data on employment, legislation, sentencing patterns and practices within the system. This data should be both qualitative and quantitative and should be made public on a regular basis. The recommendation regarding the need for a proactive strategy for securing a 'reflective' workforce does not go far enough. We believe that the workforce must be 'representative' of the communities as opposed to simply reflective.
We are disappointed that the Implementation Plan fails to address the Articles of Fair Employment Treatment Order, which allows for positive action in the areas of recruitment, redundancy and training. There is no indication of any willingness to examine how the legislation can be used to ensure equality of outcome in the criminal justice system. There is also a complete failure to refer to the imposition of sanctions on staff and management who fail to adhere to the equality requirements of the statutory duty on equality.
Neither the Implementation Plan nor the draft legislation make any reference to the wealth of anti-discrimination, and equality legislation which are currently legally binding on both the British Government and the Assembly Executive. Neither document makes any reference to the EU Directives on Race and Employment both of which allow for affirmative action and both of which are binding on the British government. The legislation must be amended to clearly reflected equality and anti-discrimination obligations in the relevant places.
The Right to Silence
The Review Group failed totally to challenge this obvious breach of human rights in allowing the criminal justice system to continue to draw negative inferences form a person exercising their right to silence. This comes about as a result of the review group's failure to analyse and examine past failures and the manner in which this aspect of the Criminal Evidence (NI) Order has been abused. The review group fails to examine how this section of the Order has been used by a politically motivated police force and criminal justice system and fails to call for its repeal. The Review Group missed an opportunity to call for the repeal of the Criminal Evidence Order.
Public Understanding and Accountability
The detailed recommendations on public information and education are to be welcome though there should have been some indication as to the formats in which this information should be made available and that they should also be available in Irish and ethnic minority languages.
We welcome the recommendation concerning the establishment of a complaints mechanism that covers all parts of the criminal justice system. The Group should have recommended that these complaints should be monitored in light of the statutory duty on equality and the results of such monitoring published.

CODES OF ETHICS
There are numerous references throughout the Implementation Plan for the need to put in place Codes of Ethics for the various criminal justice agencies and offices. However the major flaw is that the design and implementation of these codes is left to the separate agencies and offices i.e. DPP to put in place. None have prescribed timetables for implementation. As a minimum Sinn Fein would recommend that all Codes of Ethics should:

All contain the aims and guiding principles of the Criminal Justice system as well the aims and objectives of the relevant agencies.
Be subject to wide, meaningful and transparent consultation.
Adhere to human rights standards.
Be rigorously equality proofed.
Human rights and equality/anti-discrimination obligations should be clearly stated alongside guidelines for good practice. It should also include a requirement to pay particular regard to making staff aware of rights and obligations under human rights and equality legislation.
Contain a clearly stated relationship between codes of ethics and codes of practice. There should also be clearly stated criteria and circumstances for investigation/discipline and sanction.
Set out clear ethical standards i.e.

Professional Duty
Confidentiality
Fitness to carry out responsibilities.
Integrity

LEGAL AID
The Review Group failed to deal in any substantive way with the whole issue of legal aid and appeared to go so far as to endorsing the British government recommendations contained in its consultation paper on legal aid.
Sinn Féin has serious concerns regarding some of these recommendations and their implications for a person's ability to state their case on an equal footing with the prosecution, for access to legal representation of their choice and for their overall access to justice regardless of the ability to pay. We fear that these rights will be diluted within the British government's recommendations on legal aid and will therefore have serious implications for access to the justice system and equality. Sinn Féin has elsewhere made formal submission on the Legal Aid consultation.
The draft Bill gives powers to the British Lord Chancellor to direct that exceptional legal aid be paid in certain circumstances. This should not be a role of the Lord Chancellor but should be retained within the legal system in the North, probably with the Attorney General.
Sinn Fein would welcome that the granting of financial assistance at inquests is being put on a statutory footing however we believe that such assistance should be as of right in all such cases
PUBLIC PROSECUTION SERVICE
This section of the Implementation Plan contained 51 recommendations. 47 have been stated as accepted, 2 have been accepted with qualifications and 1 has been accepted in principle (transfer of cases to Crown Court).
Sinn Fein is disappointed at the NIO dilution of the far-reaching proposals made in the Review Groups report relating to the prosecution.
This area of the review is perhaps one of the most important. It has a direct impact on virtually every other section of the whole criminal justice system. The Review Group had, it would appear, taken on board some of the real concerns that exist regarding the current situation involving the role played by the police force in the prosecution process. This is the one area in the report where there has been a positive willingness to transcend current problems. It made various recommendations, some of which are a useful step in the right direction to begin the process of change that is required. However the interference of NIO civil servants and politicians have ensured that the draft Implementation Plan and the draft legislation dilute any positive impact these recommendations may have had.
The existing Prosecution Service has proved unable, or willing, to uphold international human rights standards. The failure of the DPP to achieve the international standards of independence, openness, fairness, accountability and efficiency was backed up by the Review's extensive proposals for reform.
Sinn Fein remains of the opinion that reform of the law officers and the prosecuting authority should not await the devolution of criminal justice matters. These reforms should not be dependent on the political climate in two years time. Every society has a right to a fair, impartial, transparent and efficient prosecution system and this is vital in a society in transition.
Attorney General
Sinn Fein welcomes the provision for appointment of a locally appointed Attorney General, although the additional functions of the Attorney should also be set out in legislation to pre-empt any possible problems that may occur if this has to await agreement in the Assembly and the Executive.
We welcome the removal of the power of direction from the Attorney General. Sinn Fein advocates the creation of a new offence whereby any person (including the Attorney) seeking to influence the prosecutor's decision-making in terms of policy or individual cases can be prosecuted to ensure the discretion to prosecute operates within an independent and accountable system, not subject to external interference.
Single Prosecution Authority
Despite Sinn Féin's recommendation in our original submission to the Review Group and in our response to the Review Group report, the current office of the DPP has not been dissolved. Given the historical role the DPP's office has played over the years in implementing British political policy against Republicans, in for example the supergrass system, a new beginning is needed. Neither the draft legislation nor the Implementation Plan engages with the real experiences of many nationalist and republican victims of what is referred to as "British justice".
The Review Group proposed that a single prosecuting authority should have responsibility for all prosecutions in the 6 counties (recommendation 23). Essentially this means that the Prosecution Service will have the responsibility for what happens after charges are brought including those previously carried out by the RUC. It is also recommended that the Department of the Director of Public Prosecutions be renamed the Public Prosecution Service of Northern Ireland (recommendation 58).
Experience in the past has created serious mistrust in the whole legal system, partly due to the presence and tactics of the RUC and the role it played and plays in bringing cases to court. Despite the potential for a new start in policing, many former RUC officers will still be part of the new policing arrangements. The need to remove the police from the prosecution role is vital. Without this recommendation the basis for the whole section would be irrelevant and it therefore must be treated as a core issue of the entire report.
The recommendation for a single prosecuting authority was a welcome development though Sinn Fein believed that there were still gaps that need to be addressed. This recommendation had the potential to enable a proper independent prosecution service to develop and therefore begin to build confidence in the system itself. We stated in our response that that confidence however would obviously depend on how this report was implemented. Unfortunately our fears on this recommendation have become a reality.
The Implementation Plan and the legislation fail to state that this Prosecution Service will be made up of wholly new appointees. Sinn Fein believes that for this new Prosecution Service to gain the confidence of all in our community there must be fundamental change of personnel, including that of senior office holders. A new head of service must be appointed, and the office renamed 'Chief Prosecutor'. This is vital given that the Implementation Plan provides for the Director to have overall responsibility for overseeing the changes. It would not engender public confidence in the new system if the individual responsible for overseeing the reforms himself headed the office throughout the prosecution saga surrounding the case of Pat Finucane, who failed to prosecute security force personnel in relation to lethal force cases and cases where collusion with loyalist paramilitaries is alleged, and failed to prosecute RUC officers who issued death-threats to Rosemary Nelson.
Radical restructuring of the Prosecution Service needs to be consolidated by recruitment for staff that is open and fair and is accessible to people from other jurisdictions and this must all be stated in the legislation. The legislation as it stands discriminates against candidates from the 26 counties applying for positions. There must also be a conscious effort made to recruit defence lawyers to the service.
Sinn Fein is concerned that recruitment has already begun prior to the establishment of new structures, and prior to the adoption of a Code of Ethics and Code of Conduct. There should be specific reference in the Bill to the requirement that all staff must receive training in human rights standards and equality/anti-discrimination legislation and obligations. Staff, current and new recruits, must be well versed in international standards, particularly those relating to the role of prosecutors, the rights of victims, the rights of defendants, and the standards relating to the use of force by law enforcement officers. The Code of Ethics and the Code of Conduct must also be drawn from these international standards and subject to open and meaningful consultation.
Sinn Fein recommended to the Review that prosecutors should supervise all investigations carried out by the police as a valuable mechanism for creating trust and confidence. We are disappointed that provision to give advice only has been made. International models demonstrate a movement towards the earlier involvement of the prosecuting authority in cases, and Sinn Fein asserts that this must be re-examined. A graphic example of why this is required was the resignation of the Coroner in relation to the deaths of Seamus Grew and Roddy Carroll in disgust at the inadequate investigative procedures. Involvement of a Prosecutor could ensure that an investigation is conducted in a manner that is most likely to gather the evidence required to provide a reasonable prospect of conviction.
It is disappointing but not surprising that there is no provision requiring the DPP to disclose reasons to affected parties for a decision not to prosecute in a case. Nor is there any provision in the legislation that states that this area of the DPP's powers must be covered by a code of ethics or human rights standards. This is one area of the review that has been seriously undermined to ensure that the DPP remains unaccountable. To date public confidence in the criminal justice system has been seriously undermined as a result of the failure of the DPP to provide reasons for decisions not to prosecute in controversial cases. In May 2001, the European Court of Human Rights in the case of Jordan, McKerr, Kelly and Shanaghan v UK highlighted the failure of the DPP to provide information to the families in relation to their cases as one of the reasons for finding the UK had breached Article 2, 'the right to life', in these cases. Provision of reasons would go some way to demystify the prosecuting authority and increase openness and accountability. This is key to increasing public confidence in the prosecution system.
The British government has failed to introduce an independent element into the complaints mechanism. It is disturbing that the British government asserts that the independent element does exist because a member of staff other than the person whose actions have given rise to the complaint will examine complaints. This is clearly unacceptable, and there must be an amendment to make provision for a genuinely independent element within the prosecuting authority. The provision that details of complaints procedures should be publicly available and included in the service's annual report, along with an account of the handling of complaints throughout the year, should be provided for in the Bill, as it is an important mechanism for increasing accountability and openness and ensuring protection of human rights and equality.
1. The Implementation Plan is vague on the issue of which agency will have responsibility for determining whether diversionary mechanisms are opted for, especially the decision of offering cautions. According to the Implementation Plan caution guidelines have already been agreed. Is this to be taken as meaning the power has remained with the police?Despite the hope for new policing arrangements, many former RUC officers with poor human rights records will still be in a position to determine whether or not to issue a caution rather than sending papers to the prosecution service. The emphasis should be to limit police discretion as much as possible.
2. We urge amendment so that the Prosecution Service takes on this power. The guidelines must be accessible to the public.
3. Sinn Fein believes that moves to make provision for diversionary mechanisms for juveniles are positive. However, the British government has totally ignored the recommendation by the Review that diversionary options should be instituted in relation to mentally disordered offenders or drug users. The recommendation for 'the making of arrangements for restorative interventions' has also been ignored. This should be re-examined. Genuine engagement with the community and other agencies and service providers about what is involved in the diversionary process and to highlight the availability of diversionary mechanisms available at the local level, in addition to the direction of resources for the provision of diversionary schemes, provide the potential for the emergence of a constructive partnership to emerge. This would help increase accessibility to, and transparency of, the prosecution service at the community level, and would be a positive extension of the functions of local offices of the service. The establishment of local offices is referred to in the Implementation Plan but should be provided for in the Bill. The offices must be subject to effective monitoring to prevent regional variations or trends from creating a structure that has different effects in different areas.
4. Sinn Fein are concerned at the failure to establish any effective mechanism for increasing the efficiency of the prosecuting authority. It is vital that the human rights of the victim to restitution and of the accused to be brought speedily to court are recognised and respected. The inclusion of such a mechanism should be included in the Bill.
JUDICIARY
The Review Group in this section made 44 recommendations, all of which are stated as accepted. 8 are dependent on legislation, 15 are dependent on both legislation and devolution and a further 21 are stated as being already in place or ongoing.
Sinn Fein approaches the issue of future judicial structures in the north of Ireland on the basis of a number of assumptions:

The existence of the Criminal Justice Review, emanating from the Good Friday Agreement, represents an implicit criticism of the existing judicial structures. These structures, and the personnel associated with them, are unacceptable to nationalists and republicans on the basis of their willing involvement in a distorted criminal justice system with a clear counter insurgency function and remit - including non-jury courts, the operation of supergrass trials, perverse acquittals of state actors and the judicial input into seven day detentions.
The politicised court system in operation in the north fully represented and endorsed a British culture and ethos in relation to judicial appointments and oaths, symbols and emblems and the anachronistic nature of court proceedings. There has never been an attempt to reflect the diversity of political thinking in evidence in the north of Ireland or an attempt to generate an island-wide perspective on justice issues outside of a repressive framework.
There has been chronic and persistent under-representation of both nationalists and women within the judicial structures in the north and the entire appointments procedure is characterised by secrecy and obscurity.
There has never been even the semblance of an oversight or monitoring structure to which the judiciary could be held accountable.
There has been a glaring absence of judicial focus on human rights training and the development of appropriate international safeguards.

Accordingly, it is the position of Sinn Fein that the draft Justice Bill must address the following areas:

It is unreasonable to expect that those who facilitated the distortion of the criminal justice system should be allowed to remain in place in the absence of clear and demonstrable evidence of a change in attitude in relation to the framework of repressive powers available to the judiciary, and in the absence of an acknowledgement that the courts operated as an adjunct to the British state's criminalisation strategies. Future judicial figures should also be drawn from a wider pool of qualified candidates in order to eradicate the corrosive and unaccountable system of patronage currently in operation.
There should be a strict policy of neutrality in relation to court symbols and to the ethos of the judiciary and courts. This should extend to judicial oaths, the use of titles, and the manner of address in court sittings and other matters of court protocol.
The under-representation of nationalists and women amongst the judiciary must be dealt with as a matter of urgency. The relevant areas to address also include the issues of class background, ethnic origin and political allegiance. A judicial structure should be fully representative of the society it serves and a monitoring mechanism should ensure that this occurs and is maintained within a specified time frame. The methodology of judicial appointments should be re-framed to ensure it is administered in a demonstrably transparent and fair manner.
There is an urgent need for the creation of an oversight mechanism that enjoys the confidence of society. Accordingly, the judiciary should operate to agreed criteria developed by a representative oversight body consisting of judicial, legal, layperson and human rights based elements. Any criteria developed, including a code of practice, should contain relevant performance indicators, targets and methods of assessment.

Sinn Fein would argue that, once again, the opportunity of maximising the conflict resolution aspect of the review process has been missed.
A comparison of these (minimum) requirements against the contents of the draft Justice Bill reveals the following deficiencies (bearing in mind that the proposed clauses become operational only in the context of transferred powers):
Clause 1: The 'guarantee of continued judicial independence' is acceptable in a context where it refers to independence whatever the political or constitutional situation in the north, but not if it relates to an assertion that judicial independence has been upheld assiduously in the past. Consideration should be given to a general affirmation in this Clause which refers to the need for the judiciary to conduct their affairs in an impartial and fair manner - Principle 2 of the UN Basic Principles on the Independence of the Judiciary would be particularly appropriate:

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

Clause 2: All references throughout the Bill to 'Lord Chief Justice' should be excised. Chief Justice should be sufficient in order to denote seniority.

Clause 3: The Judicial Appointments Commission demonstrates an imbalance in relation to the judicial membership (given the small size of the judiciary in the north and the need to develop an effective and transparent mechanism for judicial appointments). In addition, the Chief Justice has sole discretion in relation to the five judicial nominations. Clause 3(7) states that the First Minister and Deputy First Minister must try to ensure that the five lay appointments are representative of the community in the north. This is an inexcusable omission that demonstrates the extent to which the judiciary is considered to be exempt from provisions that very naturally extend to the rest of the population. It is elitist and should be removed.

Clause 4: The British monarch should not be involved in the appointment of senior judicial figures. The monarchical system is an anathema to nationalists and republicans, acting as a barrier to the advancement of suitably qualified candidates for judicial appointment on the basis of their political beliefs (evidenced at a lower level in the modifications made to the oath taken on appointment to QC and the institutionalised resistance to this from within the judiciary).

Clause 5: The assertion that only a person recommended by the Commission can be considered for appointment is a welcome one. This demonstrates further the need for a balanced and representative Commission. The First Minister and Deputy First Minister should not (with the caveat of representativeness of the Commission) be empowered to overturn a decision of the Commission. Clause 5(6) states that appointments are to be made on the basis of merit. It is not inconsistent to allow for appointments on the basis of merit from a pool of those deemed to have reached pre-determined criteria that should be representative of society as a whole. There should be an assertion to the effect that appointments should take cognisance of the need to have a judiciary that is representative of society. Section 75 of the Northern Ireland (1998) Act must be rigorously applied.

Clause 6: The removal of all judicial figures (including the most senior - see Clause 8) should be delegated to an oversight mechanism that applies exactly the same standards of probity as those applied to lay magistrates in Clause 12 or to lay membership of the Judicial Appointments Commission (namely conviction for a criminal offence; bankruptcy; an inability to exercise functions). The term 'misbehaviour' is vague in the extreme. Such an oversight mechanism should be independent of the judiciary and should be representative of society.

Clause 7: The Chief Justice should be afforded the power to veto the suspension of a listed judicial figure. It is appropriate to obtain the opinion and advice of the senior judicial figure.

Clause 9: Any code of practice that relates to complaints about judicial figures should be developed independently of the judiciary themselves (although their input and opinion would be welcomed). The independent and representative oversight mechanism referred to latterly would be the appropriate author of any such code which should be based on the UN Basic Principles on the Independence of the Judiciary.

Clause 12: All judicial appointments should be made by an impartial Judicial Appointments Commission, including those of magistrates. The British Lord Chancellor should play no role in this.

Clause 15: The extension of the criteria for judicial appointment to solicitors is to be welcomed. This should be further extended to include those who are similarly qualified in other jurisdictions outside of the north of Ireland (and should specifically relate to a similar criteria in the south of Ireland) and should include, as a matter of course, academics from a legal and human rights background. The legislation should be amended to reflect this.

Clause 16: The judicial oath proposed is anachronistic. Reference should be made to fairness and impartiality and reference to `the laws and usages of this realm' should be excised. `Jurisdiction' is a more appropriate term.
In conclusion, Sinn Féin would broadly welcome the inclusion of a number of proposals within the draft Bill, particularly the creation of a Judicial Appointments Commission - but only on the basis that it is truly representative of society in the north of Ireland in all of its constituent parts and that the appointment of judicial figures is independent of the Chief Justice. The fact that the Judicial Appointments Commissioner was recruited prior to these recommendations being accepted is an indication of continued NIO interference in what should be an independent criminal justice system.
Sinn Féin is also supportive of the creation of a code of practice relating to judicial complaints, on condition that there is a clearly determined independent aspect to its remit and operation. These Codes of Practice must also be subject to real and meaningful consultation as well as human rights and equality proofing.
The capacity to involve suitably qualified solicitors in the judicial system is another obvious improvement to the existing situation as regards appointments. This needs to be extended further to include academics and to facilitate entry of suitably qualified external candidates, particularly from the south of Ireland. All candidates must be appointed in a fair and transparent manner on the basis of agreed criteria.
More critically, the proposals contained within the draft Bill should not be contingent on the eventual transfer of powers to a putative justice ministry in the north of Ireland. There is an obvious and overwhelming need to generate broader confidence in the current criminal justice system as a matter of urgency. An associated matter is the need for an independently developed and assessed training regime that will re-orient the judicial structures in the north of Ireland towards a maximilist human rights culture.
One glaring omission is the absence of a strategy or mechanism for achieving a representative judiciary, an astonishing oversight on the part of the draft Bill. A related matter, in terms of a reflection of diverse political allegiance in Ireland, is the need for an all-Ireland judicial structure that can operationalise the sections of the Good Friday Agreement focused on the need for north-south development and convergence. In addition, there should be no role for the British monarch in relation to judicial appointments, whether symbolic or not, neither should there be language which seeks to affirm the British nature of the judicial system in a part of Ireland where the authority of the British monarch and British sovereignty is a source of dispute. Neutral language should fully reflect the need for a neutral judicial system.

COURTS
In this section of the Implementation Plan there were 19 recommendations, 18 stated as accepted and 1 accepted in principle. Only two are dependent on legislation (flags and symbols in court houses and simplification of dress in court).
The public's main contact with any criminal justice system is usually through appearing in court as a defendant, a witness or accompanying a friend or family member. It is important therefore that their experience of the system is the right one. There are some useful modernising recommendations here such as a review of the layout of courts to make them less intimidating; these are welcome in themselves. The fact that the simplification of dress and an end to the wearing of wigs as proposed by the Review Group is only accepted in principle, leaving it for the Lord Chief Justice and the judiciary to decide on is not encouraging. These proposals would assist the court users to understand the system and not be intimidated by it and the fact that the NIO have decided to leave it up to existing practitioners is an evasion of the issue and a missed opportunity to make substantial change that would have an immediate impact on people coming into contact with the court system. Sinn Fein would urge strongly that this recommendation as made by the Review group be implemented in full as a matter of urgency.
The need for an easily accessible, modern court environment in which citizens can interface with the legal process is a bonus that is long overdue. It is our view that the draft legislation and Implementation Plan should ensure that this is achieved.
Symbols
One of the key issues in this section concerns symbols. The Review Group recommended that the court itself should be a neutral environment. Sinn Féin acknowledged this as a positive step. We were concerned however at the refusal to create a neutral working environment outside court buildings. The NIO have also seized enthusiastically on this failure to make fundamental change and this is unfortunately reflected in the draft legislation. The royal coat of arms and the union flag will remain (61). Symbolically, this is no more acceptable outside the building than it is inside the building. To this end it would be very easy to adopt a neutral "legal type" symbol to identify a courthouse should this be the reason for it. The draft legislation allows for existing coats of arms to remain on the outside of buildings. Sinn Fein would recommend that that this clause (62) be deleted and totally reworded to state that the Royal Court of Arms must not be displayed on any courthouse whether existing or new.
The use of terminology also impacts on people's perception of the court system. However this issue is not addressed in the Implementation plan or legislation. Rather than referring to barristers as Senior Counsel, the old monarchical version of Queen's Counsel will continue (recommendation 59). That change would easily have reflected a modern approach to the legal system. Just as the oath of allegiance barristers had to take, the term 'Queen's Counsel' reminds the holder of her/his position as a subject of a British system. Members of the profession should be there to apply justice and serve the interests of the public. This should be their only overarching allegiance. Sinn Fein would recommend that the issue be revisited as a matter of urgency.
There is a noticeable absence of any concrete recommendation concerning Irish speakers; rather the report recommends "the use of Irish is considered in the wider context of developing policy on using Irish in public life generally" (recommendation 60). The NIO have clearly opted to put the issue of full access for Irish speakers in the legal system on the long finger. This is in direct conflict with the Good Friday Agreement where participants and specifically, the British government would "in particular in relation to the Irish language, where appropriate and where people so desire it:

take resolute action to promote the language;
facilitate and encourage the use of the language in speech and writing in public and private life where there is appropriate demand;
seek to remove, where possible, restrictions which would discourage or work against the maintenance or development of the language
make provision for liasing with the Irish language community representing their views to public authorities and investigating complaints; etc.," (Good Friday Agreement: Rights, Safeguards and Equality of Opportunity - Economic, Social and Cultural Issues)

While the implementation plan states that the Court Service ' in consultation with other government departments is considering the scope for the use of Irish in courts' there is no indication of any consultation with Irish language groups and speakers. There is no excuse for any delay in making the court service accessible through the medium of Irish and urgent movement is required on this.
The practice of declaring "God save the queen" will end and the inside of courts will be symbol-free (recommendation 61). This is a step forward however, as pointed out in other sections in this submission, royal symbols will remain on court exteriors. This is a clear contradiction when what is required is a neutral legal system. It is insufficient for the Implementation Plan to state: ' .it is.Court Service policy that there should be no declaration of 'God save the queen' on entry of the judiciary to the court. A notice will be issued to court staff reminding them of this policy'. If this is an already existing policy it is clear that the court service has been blatantly ignoring it for quite some time and that there is a political motivation within the service for persisting in the use of the declaration. A circular therefore is not sufficient. There must be rigorous monitoring of the implementation of this policy and sanctions brought against staff that continues to ignore it.
Inquests
The whole inquest system in the north has been a controversial one and a mechanism used and abused by the British government and its agencies to perpetrate human rights abuses. It is stated in the Implementation Plan that an independent review ahs been initiated by the British Home Office and the Court Service which will review the coroner system in England, Wales and the North of Ireland. This is completely insufficient given that the coroners courts have operated in the north as part of the machinery of conflict and repression and this requires a separate much more fundamental review.
IN the north of Ireland official statistics show that the British army and RUC have killed 357 people whilst formally "on duty". Over 70 of these people were children. Many of these killings happened in controversial circumstances where eyewitness accounts are totally at odds with the 'official line'. In all of these deaths in suspicious circumstances less than 20 prosecutions were initiated. Of these only three secured a conviction, all of which have been overturned i.e. Private Ian Thain, Paratrooper Lee Clegg and Scots Guards Ian Fisher and Mark Wright. There have been no convictions of RUC members for the killing of any of the 53 people for which they have been responsible. There has been a complete failure of the criminal justice system to properly investigate and conduct inquiries into these deaths.
In the absence of prosecutions the only avenue for relatives to ascertain the truth of their loved ones death is through the inquest system. Here we encounter a system that has been stripped of any powers and is limited to merely establishing the cause and circumstances of a death. IT is not permitted to return a verdict, compel state witnesses to appear and has been subject to routine abuse of Public Interest Immunity Certificates to ensure that the relevant information cannot be made available to the Coroners Court.
A new inquest system is urgently required based on the UN Principles on the Effective Prevention and Investigation of Extra-legal Arbitrary and Summary Execution. Relatives for Justice have called for the scrapping of the current inquest system to be replaced with anew one incorporating the following measures:

The Coroners Law and Rules should be brought into line with internationally recognised standards for the conduct of inquests.
All disputed cases should be re opened and new inquests held.
An inquest into a disputed death should always be held.
Coroners should always sit with a jury in disputed cases.
Inquests should be held promptly and adjournment should be kept to a minimum.
Legal aid should be available for inquests.
The notion of parties to an inquest should be introduced and parties should have the right to examine witnesses and challenge jurors.
Material witnesses should be entitled to testify.
The practice of anonymous screened witnesses must cease.
Coroners should have the power to compel witnesses to attend and testify, subject to their being protected from self-recrimination.
Hearsay evidence should not be admissible.
Public Interest Immunity Certificates should be invalid in preventing disclosure of evidence to inquests.
Juries should be entitled to bring an appropriate verdict and to apportion responsibility for disputed deaths in general terms.
Coroners and juries should be allowed to make appropriate recommendations for the avoidance of further deaths.
Coroners and juries should be entitled to add riders to their verdicts.
Families of victims and their representatives should have access to all autopsy reports, documents, witness statements, and other evidence and have it in adequate time to prepare for the inquest.

Sinn Fein would fully endorse all these proposals and urge that these be a minimum outcome of any review of the inquest system in the north.

RESTORATIVE AND REPARATIVE JUSTICE
Of the 26 recommendations in this section all are stated as accepted with 24 dependent on legislation.
Generally, British government has opted for a top down approach to restorative justice that is the one recommendation from the Implementation Plan that is ongoing. They have tied its development to the courts, which will "drive" the use of this form of intervention (recommendation 63). The model is the New Zealand youth conferencing model. In addition, the police and prosecutors will have access to other restorative justice schemes.
The Implementation Plan has narrowed the scope for community driven schemes (recommendation 168). This means that - on the face of it - schemes in loyalist areas may well be funded while those operating in republican areas may not. The NIO have refused utterly to acknowledge the problems that nationalist and republican communities have had in dealing with the RUC and these problems continue to effect policing because of the failure to fully implement Patton. In present circumstances these republican projects continue to operate on the basis of having no contact with the police and the formal criminal justice system. The implementation Plan wishes to see schemes develop which take referrals from the courts or are administered by criminal justice professionals. The approach by the NIO poses many problems and contradictions for instance in recommendation 147 there is much emphasis on the need for the re-integration of the offender back into the community. How can this be done without the full involvement and support of the community affected?
However, it is to be welcomed that commitment to human rights standards and regular inspection by the Criminal Justice Inspectorate will be clear safeguards for local schemes. Sinn Féin welcomes this openness to emerging projects that are developing a formidable caseload and are clearly filling a local need. We will continue to argue vigorously for the worth of these projects.
The commitment to the focus being on the victim in recommendations 151-154 is very welcome.
Recommendation 159 allows for the establishment of youth conference and youth conference co-ordinators to be housed within a separate arm of the Department of Justice or one of its agencies. Sinn Fein would further urge that the co-ordinators should be independent of the Department of Justice so that they are seen as being totally independent and they should build strong links in local communities.
Nonetheless, the minimalist approach of the NIO is unfortunate as it shows how little they have really been prepared to engage with the reality of nationalist/republican alienation from the system.
LAY INVOLVEMENT IN ADJUDICATION
The 14 recommendations in this section are all stated as accepted with 9 of these dependent on legislation.
The review group and then the NIO had an opportunity in this section to develop the role and input of the wider community in the overall legal system. The end result of this section would appear to rule out any wider involvement than already exists. The reviewers have limited lay involvement to:

First remand hearings;
Issuing warrants and summonses; and
Continuing to sit as panellists in youth courts (50).

Compared with some of the proposals made to the review team about bringing justice closer to the community, these recommendations are disappointing. Rather than giving a role to lay people as assessors sitting with magistrates, for example, in courts closer to local areas where people live, the review team have made recommendations which rationalise the system and streamline it to make more judges available for criminal trials. While this is likely to have the welcome effect of speeding up cases so that justice is speedier for both victim and accused. It will not however change the nature of ordinary people's experience of the system. Once again, there are recommendations concerning the importance of criminal justice professionals making a contribution to "increasing public understanding of" the system (see recommendation 53). In other words more information and education are needed to address alienation rather than any more concrete proposals to ensure that people from nationalist and republican areas are involved in positions other than the dock.
It remains to be seen whether the rationale for the limited recommendations in this section is political, organisational or simply a financial concern about how much it would cost to put in place and maintain the potential numbers of lay people involved. This is an area, however, which Sinn Féin insists has a real contribution to make in transforming people's experience of criminal justice. It should also be tied in more strongly with local Restorative Justice schemes that are emerging in many areas.

JUVENILE JUSTICE
The threads of discrimination and inequality, which corrupt the administration of justice generally in the North of Ireland, also impact on the system as it relates to children. Given their particular vulnerability they are however more likely to be adversely impacted upon by the discriminatory practices of the constituent elements of the criminal justice system as currently constituted. Comments elsewhere in this submission should be read across in respect of juveniles. Whilst immediate remedial action is required to address the denial of human rights children are suffering in the current operation of the Juvenile Justice System (e.g. the inclusion of 17 year olds in youth courts and the closure of Lisnevin) there should be an urgent, totally independent and comprehensive review of the Juvenile Justice System.
Sinn Féin's concerns in respect of the Juvenile Justice System are well documented.
As is to be expected given the unrepresentative nature of the RUC, the DPP's office, judiciary and the lay panel, Catholic boys suffer significant disadvantage within the current Criminal Justice System. In addition children with disabilities and children with special education needs are over represented as compared to the population at large in the Criminal Justice System. Young girls in need of secure accommodation are sent to Maghaberry; this is gender discrimination, in breach of S75 and Schedule 9 of the NI Act 1998 and in breach of international human rights standards. The NIO have been negligent in their duty to address this issue in the Implementation Plan. We highlighted many of these in our original submission to the Criminal Justice Review.
In addition to the ECHR and the ICCPR any Juvenile Justice System must be based on the UN Convention on the Rights of the Child, the UN Guidelines for the Prevention of Delinquency 1990, the UN Standard Minimum Rules for the Administration of Juvenile Justice 1985 and the UN Rules for the Protection of Juveniles Deprived of their Liberty 1990. Given the use of these international human rights standards as interpretative tools by the European Court of Human Rights, despite some being non-binding nature they should be the foundation stones of any Juvenile Justice System. Their omission from the stated aims of the Youth Justice system in the draft legislation is a flaw that must be addressed.
The aims of the youth justice system are a new policy being developed and as such should be subject to full consultation and an equality impact assessment under the requirements of Section 75 of the NI Act. It is of concern therefore that the aims of the youth justice system were not part of the Court Service Screening process and that it has been excluded from the recently published Equality Impact Assessment of Policies Arising From the Implementation and Recommendations of the Criminal Justice Review Group.
All those who are in any way involved in the Juvenile Justice System as it relates to children should be required to undergo human rights training to include the child specific international human rights standards referenced above. This includes those working in the Juvenile Justice centres, barristers, solicitors, magistrates, lay panellists, judges, any new police service and those engage in diversionary work. The recommendation in the Implementation plan for 'broad human rights awareness' is totally unsatisfactory and becomes even more so when the NIO states that it is the police who will be responsible for this awareness training. This is a nonsense that must be rectified as a matter of urgency.
The basis of the operation of a Juvenile Justice System should be to prevent offending and encourage diversion. Holding such young children criminally liable flies in the face of these principles and leaves the British with one of the lowest ages of criminal responsibility in Europe. The age of criminal responsibility should be raised to at least 14.
Sinn Féin fully subscribes to the UNCRC's definition of the child as those below the age of 18. Sinn Fein therefore welcomes the inclusion of the draft legislation of the clauses bringing 17 year olds within the ambit of the youth courts.
Given that the Review recognised 17 year olds as children there is no logic to then exclude them from Juvenile Justice Centres and require they are sent to Young Offender Centres with 18-21 year olds. It also militates against a stated aim of preventing re-offending. According to international human rights standards for the purpose of the administration of justice, 17 year olds are children and should be treated as such. 17 year olds should along with other children appearing before the youth courts serve any determinations in juvenile justice centres. We therefore recommend that recommendation of 172 and the NIO's stated intention of continuing to refer 17 year olds to Young Offenders Centres should be deleted and reappraised. The corresponding clause in the draft bill (60; 3a) should also be removed.
Currently large numbers of children are being remanded to Juvenile Justice Centres in contravention of both domestic and international legislation. Except in very extreme and clearly defined circumstances children should not be remanded and then only for very short periods. Sinn Féin does not accept the recommendation for the establishment of bail hostels (176). Such establishments would be totally inappropriate for children potentially as young as 10 and clearly not in the best interests of the child. Further the NIO should be reminded that children on bail remain innocent until found guilty. Adequate resources should be directed to the establishment under the supervision of social services of very small 2/3 bed units to accommodate children on bail who have no where else to go. These units should be established throughout the North to facilitate children maintaining family contact and continuity in their education.
Lisnevin Juvenile Justice Centre should be closed immediately (177)
Sinn Fein welcomes the decision to close Lisnevin by Autumn 2002. The ethos and practices in Lisnevin are totally inappropriate for children and - in some cases - constitute torture, inhuman and degrading treatment. Under no circumstances should the ethos or current practices in Lisnevin be transferred to any other or future Juvenile Justice Centre.
Sinn Féin believes strongly that the future of juvenile custodial facilities lies in the establishment of a number of small 4 or 5 bed custodial units, which are locally based throughout the North. This would enable more intensive work with these vulnerable young people, facilitate the maintenance of family relationships and enable continuity of education. Further it would allow for provision to be made for female children in need of secure accommodation who are currently held in Maghaberry.
Sinn Féin fully accepts that diversion is a lynch pin of any Juvenile Justice System and is essential to ensure compliance with international human rights standards. Further Sinn Féin agrees that such schemes must be based on inter-agency and inter-sectoral partnerships. However any diversion schemes involving the police will not be acceptable to the nationalist or republican community. The involvement of any police service in diversion or juvenile liaison bureaux will only be acceptable when such a police service is in itself compliant with international human rights standards for law enforcement agencies. Further, Sinn Féin is deeply concerned about the police practice of cautioning children as an alternative to prosecution. This current malpractice should be independently audited and equality proofed.
Emergency legislation should be immediately repealed and should never be applied to children. The power to detain a 10-year-old child for 7 days can never be justified under international human rights standards. The right to silence, a right which is fundamental to any democratic justice system should be restored immediately. Children, given their particularly vulnerable status, are particularly susceptible to miscarriages of justice arising form the draconian denial of the right to silence.
Sinn Féin is concerned about the current lack of easy access for children in Juvenile Justice Centres (some as young as 10) to independent legal advice. This, coupled with ineffective complaints procedures, of which many children are unaware, renders children in Juvenile Justice Centres very vulnerable to abuse and to a denial of their human rights. We agree with the recommendation concerning the need for an urgent overhaul of the complaints mechanisms in Juvenile Justice Centres. Further a system should be established whereby independent legal advice is regularly made available to children within the juvenile justice either through the operation of a duty solicitor type scheme or through an agency.
An independent visitors scheme for Juvenile Justice Centres should be established. In addition, a totally independent dedicated Juvenile Justice Body should be established to monitor and review - on an ongoing basis - legislation, policy and practice in the Juvenile Justice System. This should include the operation - from a child's perspective - of any new police service, the probation service, the courts, the legal profession, the judiciary and those operating custodial and diversionary provisions. Membership of such a body should be recruited in an open and transparent way through public advertisement. Such a body should, as a matter of course, consult with children; especially - but not exclusively - those who have had experience of the Juvenile Justice System.
As we have stated already on a number of occasions the current management structures for Juvenile Justice Centres are totally unacceptable and constitute a serious conflict of interest. Further, it is the belief of Sinn Féin that recent practice by the juvenile justice board was deliberately designed to undermine St Patrick's Juvenile Justice Centre to the extent that it was no longer viable in the event of rationalisation of juvenile justice provision. Sinn Féin's full analysis in respect of this issue is contained in its submission to the Review of the Juvenile Justice Estate. The proposal to replace the Juvenile Justice Board by a Next Steps Agency may be welcome in itself so long as there are openly recruited, representative people on the new Agency.
Finally, it is our view that Juvenile Justice should cease immediately to be a reserved matter and should be transferred forthwith. Sinn Féin reiterates it's long standing call for the establishment of a Minister for Children. Given the ethos and the international human right standards, which should underpin any juvenile justice system i.e. preventing re-offending, diversion and the care of the child it defies logic for responsibility for juvenile justice to rest with prisons and probation. Responsibility for juvenile justice should unquestionably lie with a Minister for Children.
COMMUNITY SAFETY
This section of the Implementation Plan made 15 recommendations, 10 of which were stated as accepted; 4 accepted in principle and 1 for further consideration (Establishing Community Safety and Policing Partnerships). 1 is subject to devolution and 1 dependent on legislation.
The section of the Implementation lays out the proposed aims of a community safety strategy. Yet again given that this is a new function and policy it should be subject to an Equality Impact Assessment and full consultation. This has not been mentioned. The proposed aim is also omitted from the draft legislation. This must be amended.
On community safety, the Review Group reflected on the Patten proposals for local police partnerships that would drive the local safety and security agenda. The Review Group made proposals to change the name and the powers of these local boards. We note that the Review Group felt that they were entitled to make proposals about the Patten report on Policing when they felt unable to make proposals on emergency law.
Broadly, however, the proposals endorse the idea of the Policing Commission concerning community policing and tie these into this section of their report. We particularly welcome the fact that the report accepts that there should be local capacity for raising funds for community safety as long as this is additional and not supplementary to the statutory responsibility.
However, it remains to be seen whether the model that emerges is actually a community partnership. It remains a problem that real community participation in such issues tends to become more and more distant the more the idea is incarnated.
We have witnessed during the debate on the Policing Bill that NIO Civil servants, the British Secretary of State and parliamentarians in general become very concerned the more input local people, and particularly republicans, have in relation to policing and community safety matters.
These proposals are interesting and welcome but will only work if community leaders who are truly representative of the community, not those handpicked by government, have a real stake in them. Attempts to ensure that ex-prisoners - who play leadership functions in the areas under discussion - are excluded from involvement are misconceived. It is in this area that the Report of the Review Group was least satisfactory. This, however, can be rectified by the NIO during an extensive consultation process. There are local projects that have acquired expertise and street credibility in these issues. Final proposals must not be exclusionary of such expertise.
It is strange therefore given that the NIO has stated that the proposal to establish Community Safety Partnerships needs further consideration that they are included in the draft legislation in some detail. The draft legislation gives the British secretary of state the power to devise a community safety strategy and to further change it while only having to consult the First and Deputy First Minister, the Chief Constable and the Policing Board. The legislation should reflect the obligations under Section 75 of the NI Act and ensure that extensive consultation to any proposed changes are carried out.
SENTENCES, PRISONS AND PROBATION
There were 22 recommendations in this section, 16 of which are stated as accepted, 1 of which is subject to devolution and none dependent on legislation.
Broadly, there are useful recommendations here concerning roles of the Prison Service and Probation.
We do not accept that there is a need for electronic tagging. The Implementation Plan states that this should be kept under review by the Criminal Justice Issues Group when it is reconstituted. In our view, properly resourced community programmes and intensive offender programmes would be conducive to a more effective rehabilitation. Of course these are resource intensive however they also provide a more integrated and integrating vehicle both in terms of the community's inter-action with the criminal justice process and for the offender with her/his community.
Sinn Féin welcomes the recommendation that members of the prison service undergo community and cultural awareness training. Many members of our community have been through the prison system and have had first hand experience of the approach of prison warders to the republican perspective. There should be a major effort at recruiting individuals from the nationalist and republican community in order to ensure that it can no longer be the case that one community acts as jailer to the other.
Finally, Sinn Féin welcomes the proposal for a mechanism to adjudicate independently on release of life sentence prisoners. This accepts the recommendation we made in our submission to the Review Group. This is long overdue and reflects our finding that the Sentence Review Commission has done an excellent job in relation to releases under the terms of the Good Friday Agreement.
VICTIMS AND WITNESSES
Of the 16 recommendations in this section of the Implementation plan, 5 were stated as accepted and the rest accepted in principle with only one (information about release of Prisoners) being dependent on legislation.
Sinn Féin broadly welcomed the recommendations in this section of the report concerning the need to provide information to, and support for, victims of crime. It is also important that victims are consulted about the development of the case where appropriate. It is of course important that - because victims' reactions to what has happened to them tend to vary - justice should be impartial. Victims should be allowed the opportunity to make a declaration in court before sentencing.
The usefulness of information and consultation, however, will depend on the effectiveness of the transformations, which come about as a result of this report and the Patten Commission process. The notion that a former RUC man calling at the house of a victim in a republican area will provide comfort and alleviate distress is disingenuous.
Furthermore, since the Bloomfield report we have seen during the public debate over victims that a hierarchy of victims has and is being created. On this scale, republicans are virtually invisible. Victims of state violence have been similarly overlooked. In the public mind - and the media has avidly encouraged this notion - victims of republican violence are the only ones deserving of public sympathy.
Given this experience, the question of support for victims overall must be approached with care and sensitivity. There should be no discrimination allowed in this area. There should, for example, be no attempt to continue the practice of the Criminal Injuries and Criminal Damage legislation that indicate that former political prisoners should not receive compensation because of their previous prison sentence. What does this say about hierarchies of victimisation?
LAW REFORM
12 recommendations were made in this section all of which are stated as accepted. 6 are dependent on legislation, 2 subject to devolution and the remaining 4 dependent on both legislation and devolution.
While the Review Group acknowledged very general support for an independent Law Commission and recommended the establishment of such a body -whether criminal justice becomes a devolved matter or not - the group still missed an opportunity to propose a Commission that would have a transformative, as opposed to reforming, capacity.
Sinn Féin proposed that such a Commission should be established on an all-Ireland basis and would be tasked with an all-Ireland legal framework and plan law reform accordingly. The Review group only recommended a North of Ireland based Law Commission that would co-operate closely "with the other three jurisdictions on these islands with a view to promoting the harmonisation of aspects of criminal law and procedure, north and south".
In our view, this proposal as represented in the Implementation Plan does not go far enough. The recommendation on the make up of the Law Commission is also minimalist. The Implementation Plan a draft legislation recommends that a High Court Judge chair the Commission with members comprising a senior barrister, a senior solicitor, a legal academic and one lay person. We still adhere to our recommendation that the Law Reform Commission should consist of delegates from all stakeholders in the criminal justice systems i.e.

Civil servants from the Ministry of Justice and criminal justice division
Southern and 6 county judiciaries
Prosecutorial services
Human rights commissions, north and south
Law Societies and Bar Councils
Legal and criminological experts
Human Rights and Law reform NGOs
Voluntary sector organisations
Trade Unions
Community based organisations.

In terms of the functions of the proposed Law Reform Commission the legislation (Clause 47) must be amended to reflect the functions as recommended by the Review Group not as diluted by the NIO. The legislation also makes the work of the Law Reform Commission subject to the approval of the British Secretary of state. This is not included in the Review Groups recommendations and is a further example of British government interference in the criminal justice system and retaining excessive powers for itself and must therefore be deleted from the legislation.
The Law Reform Commission proposals for its programme of work was recommended to be subject to wide consultation and this must be reflected in the legislation.

ORGANISATION AND STRUCTURE
14 recommendations were included in this section, 10 of which were stated as accepted, 4 accepted in principle. 5 are subject to devolution and 1 (criminal justice inspectorate) is dependent on legislation.
Sinn Féin made a number of recommendations for fundamental change to the organisation and structure of the criminal justice system; we recommended that an all- Ireland Ministerial body should be established to review justice provision throughout the island and that this body should be established within one year of the setting up of the Assembly Executive.
Sinn Féin believes that any plans to transfer powers in relation to justice issues should have clear safeguards built in to ensure that the system and its constituent parts operate fairly in relation to all parts of the community. The review group recommended that there should be devolution of criminal justice functions similar to the Scottish parliament but made no other recommendation. The Implementation Plan delays this even further and makes it subject to a number of conditions:
' Once the devolved institutions are working effectively, the government intend to devolve responsibility for policing and justice functions, as set out in the Belfast Agreement. We need first to take some major steps to implement the Criminal Justice Review and to make some more progress on detailed implementation of the Patten Report. A final decision to devolve these functions can only be taken at the time taking into account of security and other relevant considerations. But the governments target is to devolve policing and justice after the Assembly elections scheduled for May 2003'
This is a further example of the NIO placing preconditions and its own political intent on the Review Group recommendations.
We welcome the recommendation to establish a single department of justice and an inspectorate. Sinn Féin would go further and assert that civil servant appointments to a Department of Justice should ensure appropriate representation from the nationalist community.
Sinn Féin welcomes the recommendation to introduce time limits to ensure the speedy processing of justice and recommend that this practice be monitored closely and all results published. The publication of results should also be accompanied by a programme of action with timetables to improve this area of work.
The only recommendation in the implementation plan dependent on legislation is that of the Criminal Justice Inspectorate. The legislation gives the British secretary of state the power to appoint a chief Inspector. This should be amended to ensure that the appointment is made after an open and transparent recruitment process. Once again the legislation fails to reflect the functions of the Criminal Justice Inspectorate as recommended by the Review Group (263). The legislation should be amended to reflect this.
Clause 42 should be amended to require the Chief Inspector of Criminal Justice to measure his inspections and findings against the stated aims of the criminal justice system as well as internationally accepted human rights standards.
Clause 45 of the legislation should be amended to reflect the wording of recommendation 263 that states that the Inspectorate should 'publish its reports and make them widely and readily available.' The British Secretary of state should not have the power to exclude any parts of the report on the grounds of 'national security' or 'prejudicial to public order'.
RESEARCH AND EVALUATION
In this section there were 7 recommendations 6 of which were stated as accepted and 1 accepted in principle (Information Sharing).
Sinn Féin believes that these are two elements crucial to the future monitoring and development of a transformed criminal justice system. We are concerned that the Review Group recommended that NISRA be the sole agency for collation of statistical information across the criminal justice system. The Implementation Plan rigidly adheres to the original recommendation and fails to take into account the independent research being done within and by local communities on a range of issues. These groups should also be consulted and involved in the collation of information and research. There is no analysis of NISRA's past practices in relation to provision and collation of research and data and this we feel is a missed opportunity. There should also be inclusion and publication of baseline indicators and an indication of both qualitative and quantitative data information required. The overall aim should be to ensure that as wide and as clear a picture of the effectiveness or otherwise of the criminal justice system emerges.
We would also advocate strongly that there is clear baseline data for equality monitoring and human rights monitoring.
STRUCTURED CO-OPERATION
The weakness of the Implementation Plan and draft legislation is made very apparent in this very important section which made 17 recommendations and only 1 of which was accepted. All the rest are stated as being accepted in principle with only 2 dependent on legislation.
The NIO attitude to this section of the criminal justice review fails dismally to reflect the spirit and letter of the Good Friday Agreement in relation to structured co-operation
The overall thrust of this section within the Implementation Plan is based on the premise of very limited co-operation on a 32 county basis.
We would however welcome the establishment of the proposed group of criminal justice policy makers. However our support would be dependent on the powers and the make up of such a group. We would argue that the latter should be broadly based along the lines of the representation we envisaged for the all Ireland Law reform Commission.
Constitutional Court
A major flaw in the whole report is that the review group failed to make any mention of the possibility of the establishment of a Constitutional Court. This was followed through in the Implementation Plan and legislation. Sinn Féin strongly recommended the establishment of an all Ireland Constitutional Court that would progressively harmonise the two jurisdictions and prevent further fracturing of legal systems. This Court should be the Supreme Court of the 32 counties preparing during the transitional phase of relationships on this island for eventual and inevitable unity.
We recommended that this court should be made up of a panel of judges, human rights activists and legal academics from both jurisdictions. It should deal with rights issues and interpretations of matters relating to the Good Friday Agreement.
There is nothing contained in the draft legislation in relation to structured co-operation. Recommendation 292 focused on proposed co-operation between the Law Commissions on the island however in the legislation Clauses 46& 47 there is no reference made to any co-operation between the two parts of the island. The only reference that is made is in Para. 4(c) which states that in performing its duties the Law Commission ' must consult with the Law Commission of the Republic of Ireland.'
Overall the opportunity to further develop north/south co-operation within the criminal justice system has been missed.
Conclusions
As with the Patten Report and the ensuing debate and implementation Sinn Fein have tested this review against its ability to move us further from conflict by removing the causes of the conflict. We judged the Review recommendations on the basis that they could transform the system and inspire the confidence of all in our society. In relation to the implementation plan and legislation we would say that many of the recommendations would be useful if they were applied in Manchester or Oxford. However they fail to provide the decisive paradigm shift that will win nationalist and republican allegiance. As much as policing the criminal justice system was central to the British and unionist strategy of defeating republicanism. This they failed to do. Much more work is required before this implementation plan and accompanying legislation could be considered an opportunity to transform the criminal justice system so that nationalist and republicans could feel part of it and be treated fairly and as equals within it.
SINN FEIN
December 2001

SOCIAL DEMOCRATIC AND LABOUR PARTY
INTRODUCTION
The SDLP has considered the recommendations of the Review of the Criminal Justice System in Northern Ireland. In a number of significant ways, the recommendations of the Review depart from the submission to the Review by the SDLP. However, the full and faithful implementation of the recommendations of the Review in the context of an ongoing review mechanism and other associated measures (such as the repeal of emergency legislation) can enable a criminal justice system to be constructed that is more consistent with the aims of the Good Friday Agreement.
It should be noted that there is a caution expressed by a wide range of opinion in relation to the commitment of the government to introduce legislation arising from the Criminal Justice Review (hereinafter "the Review"). This caution is informed by the manner in which the Patten recommendations on policing were, initially, given expression in the Police (NI) Bill. It is critical that, in relation to the Criminal Justice Review, forthcoming legislation faithfully, effectively and quickly implements the recommendations of the Review.
It is submitted that the current process of consultation should ensure that the objectives in paragraph (2) above are achieved. Moreover it is important that it is agreed with government how the Review is to be implemented in legislation and in other relevant forms. Accordingly, it is a requirement that draft legislation, implementation plans, timetables and such other measures giving effect to the Review respectively are shared in advance of being tabled or released.
It is to be further noted that the appointment, and more particularly, the subsequent work of the Oversight Commissioner in relation to policing change has created greater confidence in the process of change and in the independent verification of change. It is submitted that government should create a similar mechanism in relation to actions arising from the Review. This will create confidence in the community as to the intention of government and the validity of the initiatives arising from the Review.
A core principle and practice of the new political order is partnership and community. In the policing context, this translates as a requirement that community policing is the central purpose and practice of policing. So too with the criminal justice family - partnership with the community must be a central purpose and practice of the system. The SDLP is concerned that in the Review this approach is not pursued with sufficient vigour or in a way that may prove unwieldy and honourable.
HUMAN RIGHTS AND GUIDING PRINCIPLES
The SDLP welcomes the emphasis placed on human rights throughout the report, and in particular, the reference to international principles. A concern, in this respect, arises from the government's exclusion of emergency legislation and the Diplock system from the terms of reference of the Review. However, given the support for the principle of jury trial elsewhere in the Review recommendations, it is submitted that this has a compelling consequence on the Diplock System and its future.
If Government commitments on international treaties are to have significance, there should be a presumption in favour of all binding treaties being reflected in domestic law and a requirement to give due regard to principles set out in non-binding instruments. This should be reflected in legislation and in the other mechanisms implementing the Reviews recommendations. In this regard, it is significant that the Review details the range of international treaties, their effect and relevance and it is hoped that this will be reflected in actions arising from the Review.
Para. 3.25 - "Human rights and dignity should be the core value of the criminal justice system in all its aspects" [not listed in summary of recommendations] and permanent and integral part of training programmes. The SDLP would urge that refresher/update courses be given to all staff on a regular basis. It is recommended that this would include training on all appropriate international standards and the future duties under section 75 of the Northern Ireland Act. Training should be developed in consultation with and approved by the Human Rights Commission.
Para 3.27 - Aims not to be enshrined in legislation
It is submitted that to create certainty, statutory authority and subject to the aims being agreed, the aims should be enshrined in legislation.
Para. 3.28 - Criminal Justice Board aims as model for justice system
Aims should include a reference to human rights. For example, wording might be introduced "To dispense justice fairly and efficiently in accordance with human rights principles and to promote confidence in the criminal justice system.".

It is submitted that Aims should be set for a longer period than one year, e.g. five years would allow for consistency and clarity. The publication of shared set of principles and standards across the criminal justice system is important in creating confidence in the system.
Para. 3.29 - Publication of aims of criminal justice system, implementation plan and performance indicators; annual report; consultation with community.
The SDLP welcomes public consultation on the criminal justice plan. It is accepted that there shall be a three-year plan subject to annual review. There should be an annual report on progress.
Para. 3.35 Post-devolution justice system primary task "reflective workforce".
This recommendation is welcomed and would urge that the "concerted and proactive strategy" should include affirmative action and the full involvement of the Equality Commission.
Para. 3.38 Criminal Justice Board to be tasked with equality monitoring. Para. 3.41 Publication of monitoring.
The SDLP welcomes the proposal to initiate equality monitoring, but would wish to see the justice system's component organisations designated under section 75 of the Northern Ireland Act.
Para. 3.44 "Registers of membership of specified exclusive organisations could be considered further by the Government, but we are not satisfied that the benefits of such an approach would be sufficient to justify the exercise, with all thepractical and definitional issues that would be involved."
It is strongly urged that the Government reconsiders this issue. There is a strong perception that there is Masonic representation among the judiciary. This perception has a negative influence on the atmosphere within the legal profession, and by extension, undermines public confidence generally. Our view is re-iterated, that membership should be publicly declared. Those involved in the administration of justice, given the sharp difference of opinion and experience that has characterised the last 30 years in particular, should and should be seen to be impartial.
Para. 3.45 Publication of statements of ethics for each agency.
There should be consultation with social partners and the Human Rights Commission on such statements and that same should be agreed with the Human Rights Commission. It is also suggested that there is a united statement of ethics for the criminal justice system as a whole. Such codes should also apply to the prosecution service and judiciary. The Codes will require to have mechanisms for enforcement.
Para. 3.47 Membership of organisations: "If an organisation were, by its policy or actions, clearly committed to acting contrary to the law or the interests of the criminal justice system, then it would be for the criminal justiceagencies to make clear that their employees were not permitted to belong to such an organisation."
A co-ordinated approach to this issue is required and this principle should be stated in the Code of Practice for each agency.
Para. 3.50 Specific rights endorsed - contained in ICCPR and other international instruments
Rights specifically endorsed by the Review should be included in the Bill of Rights for Northern Ireland. It would be helpful to determine if government has communicated a view to the Human Rights Commission in this regard and what involvement the Human Rights Commission have in this regard.
Para. 3.52 Principle 1 of Basic Principles on Role of Lawyers endorsed
This should be included in Bill of Rights.
Para. 3.53 Threats against lawyers
This is a key recommendation and must be implemented fully. The comments in this regard by the Special Rapporteur on the Independence of Judges and Lawyers in relation to the responsibility of government is important. It is unfortunate that the Review has not made specific recommendations and it is essential that this matter is developed, beyond the role of the Police Ombudsman detailed in the Review.
Para. 3.55 Continuation of bursaries
While the SDLP welcomes the recommendation that the bursary system be continued, it is pointed out that the scheme is too limited to guarantee access to the legal profession for people from all backgrounds, particularly given the absence of support for newly qualified barristers who are denied income support or housing benefit.
Para. 3.56 Human Rights training for lawyers
This is a welcome recommendation. The SDLP would emphasise that training should include all treaties to which government is signatory and broader international standards. There should be regular refresher courses.
Para. 3.58 Legal Aid & Para. 3.60 Law Society list of experts
We welcome acknowledgement of legal aid as human right. The proposal to compile a list of experts for use by the defence would require adequate funding to have any impact.
Para. 3.63 Research into PACE
The terms and findings of such research should be considered in the context of the published aims of the system, statements of Ethics and Codes of Practice.
Para. 3.67 Public Information & Education
The SDLP welcomes such initiatives and urge that they be funded appropriately to ensure meaningful implementation.
Para. 3.68 Consideration in curriculum review
The SDLP notes the proposal to improve awareness of the justice system among young people. It is suggested that civics and ethics should form part of the core school curriculum.
Para. 3.70 Complaints mechanisms -all parts of the system should be covered.
Obviously the SDLP welcomes the recommendation that all parts of the justice system be subject to a complaints process. However the SDLP have concerns about the co-ordination of same if there are to be a number of mechanisms. The Party seeks re-assurance on this matter, for example with regard to complaints relating to prison conditions etc. It is also of concern that an "independent element" is proposed "where appropriate." If complaints mechanisms are to be taken more seriously and have public credibility, a minimum requirement is "an independent element." It is a more preferred and credible method to have an independent system.
AN INDEPENDENT PROSECUTION SERVICE
It is an essential requirement of the new criminal justice order that there is an independent public prosecution service. It is both the perception and the experience of a large number of people in the community that the current prosecution processes are not fair, impartial, independent or free from external or undue influences. An independent public prosecution system is a core component in building and sustaining confidence in the criminal justice system in Northern Ireland.
It is submitted that the proposed public prosecution system is established by new legislation. This will enable the new system to be formally and legally differentiated from the former, create a sense of a new beginning and establish an appropriate statutory basis for the Prosecution System (hereafter the PPS) upholding all appropriate principles and requirements.
The SDLP welcomes the recommendation that the PPS will have responsibility for determining if prosecution is to be initiated and further welcomes the proposals that the proposed PPS will have responsibility for pursuing prosecution in those matters currently the responsibility of the DPP and the police respectively. This model of prosecution is enhanced by the involvement of the prosecution (recommendations 24,25,26,29).
The SDLP disagrees with the recommendation that the investigative function should remain purely the responsibility of the Police.
The SDLP would instead urge that the new independent prosecuting authority should operate on the Scottish Procurator Fiscal system. The SDLP believes that this increased legal involvement, supervision and advice in the investigation of crime at an early stage (particularly in serious crime) will result in higher public confidence in the criminal justice system, and greater accountability, efficiency and success within that system.
Suitable safeguards will be required to ensure the independence of the decision to prosecute e.g.: the prosecutor involved in the investigation process should not have the sole responsibility for deciding at a later stage whether to actually prosecute.
The SDLP submits that the proposed Code of Practice, which would indicate the factors to be taken into account in determining whether to proceed, should be given statutory backing. Moreover, the proposal Code should apply to the police who will retain a level of discretion in cases prosecuted by way of Summons.
The independent prosecuting authority should have the power to instigate investigations of allegations of crime made directly to it and it should retain powers to prompt investigation by the police.
The SDLP agrees that the independent prosecution authority should have a duty to ensure that allegations of misconduct and/or criminal activity by police officers are investigated. This power should be enshrined to legislation.
The SDLP urges the repeal of the Criminal Procedure and Investigation Act 1996, particularly the provisions relating to disclosure and defence statements. The prosecution should be under an absolute duty to disclose all material that may weaken the prosecution case or may be relevant to any possible element of the defence case.
The SDLP endorses the proposal that diversion options be considered. The SDLP is continuing to consider the operation of this recommendation. The SDLP is opposed to the introduction of "Prosecutorial Fines" as the concept carries the danger of pressure, be it subtle or overt, on the "accused" to admit an offence without access to due judicial process in order to avoid more serious potential outcomes. The risk is that the prosecution may become tempted to offer this option in cases where the available evidence may be insufficient to secure a conviction under the normal process.
The SDLP repeats its earlier submission that the name of the Prosecution Service be changed to "Office of the Independent Public Prosecutor", as giving recognition to the substantial change brought by the other recommendations, and as providing increased confidence in the new structures on a cross-community basis.
The SDLP endorses the proposal that the independent prosecution service should be able to refer cases to the Police Ombudsman.
The measures outlined to safeguard the independence of the prosecution are critical. The SDLP would wish to hear further on how this is to be achieved and when.
There is a degree of concern about the representative nature in terms of community background (etc.) of various sections of the criminal justice family. This extends to the current Office of the DPP. This needs to be addressed in any future prosecution service. In this context, the recommendation to agree to publicly advertise the head and deputy head posts in the service are important. The same principle should apply to all posts.
The new service should be operational at an early date, independent of a consideration of criminal justice being devolved to the NI Assembly. Appropriate training, preparation, resources should be planned at the earliest stage and no impediment as to timing and detail should arise from the recommendation to examine justice lessons from England and Wales.
THE OFFICE OF ATTORNEY GENERAL
The SDLP accepts, in principle, the proposals for the appointment of an Attorney General for Northern Ireland.
The appeal of the proposal is that the post would be independent from government, and confirm the separation of functions between the prosecution service and the wider justice agencies. It may prove productive to consider how and how quickly to give effect to this proposal.
Recommendation 45 needs to be upheld.
THE JUDICIARY - JUDICIAL APPOINTMENTS COMMISSION
The SDLP consider that the proposed Judicial Appointments Commission (hereinafter 'JAC') is a significant step in the right direction but the Review does not go far enough. The concept of the body is a valid one and one that the Party have long advocated and therefore fully supports. However, its proposed composition and function and terms of reference are not adequate and require to be upgraded. In any case, recommendations to move to a JAC need to be implemented rapidly and not deferred to a later date due to wider criminal justice considerations.
The SDLP believes that the central aim of this new appointments body must be to ensure the establishment of a Judiciary at all levels that is representative of the community in terms of religious, political, social and wider backgrounds. For many years the SDLP have asserted, that in a divided society, where there is community imbalance in an institution such as the Judiciary, steps must be taken to rectify that imbalance. This is a self-evident proposition and it is with this aim in mind that we have measured the strengths and weaknesses of the Review's proposal. It is essential that the independence of the judiciary and in particular the requirement on government to protect this concept requires to be legislated for in primary legislation. Moreover, in the event of criminal justice being "devolved" it should be a requirement in law that any action by the NI Assembly on judicial issues would be by cross-community support.
The SDLP see the Review's proposed Judicial Appointments Commission as being in practice dominated by the Judiciary and in particular the High Court Bench. The party believes that, while there must of necessity be input by the Judiciary in the selection and appointment of Judges, the proposed system in practice would mean the Judiciary appointing other members of the Judiciary. Given the failures by the Lord Chancellor's Office in association with past Lord Chief Justices in the past to produce a balanced Judiciary, the SDLP believes that the proposed system does not go far enough in remedying past wrongs and the resulting present imbalance. It will introduce a degree of transparency, openness and accountability but more is required. The principles that apply to judicial appointments should be for all such appointments. The JAC should be a representative body and should be fully involved in interviews and appointments. If deemed appropriate, a sub-committee of the Commission could act, subject to the final approval of the full Committee.
The SDLP propose that the JAC should not be chaired by the Lord Chief Justice and the number of lay members should be at least equal to the number of legally qualified members. Their task would be to appoint a candidate, or candidates for Judicial Office, from a pool of candidates already pre-selected by a Judicial Appointments Advisory Committee, made up of members of the Bench, the Law Society and the Bar together with an equal number of lay and otherwise suitably qualified members of the public. This would provide a necessary and sufficient Judicial and non Judicial public input into the process.
The SDLP further believes and would propose thatall NI Judicial Appointments be made under the new system, including the Lord Chief Justice and the Appeal Court Judges.
All appointments up to Deputy RM should be made by the Judicial Appointment s Advisory Committee. The SDLP also advocates that there be transfers from the lower to the more senior ranks of the Judiciary and that, for particular cases, temporary appointments could be made in the High Court e.g. academic lawyers being seconded for areas involving special academic expertise. The SDLP also believes that Solicitors should be given greater encouragement and opportunity at all levels of the Judiciary and that appropriate appointments should include suitably qualified people other than legally qualified applicants.
It is our firm view that Judicial Appointments Commission should be and be seen to be independent and that the involvement of the political representatives should be restricted to the appointment of the Lord Chief Justice, which should in a transferred situation, be subject to the approval of the First and Deputy First Minister.
An important element in the criteria for appointment is that the Judiciary should be reflective/representative of the political and religious composition of the community. All appointments should be made fairly and on merit. However, criteria for appointment should be extended to include a commitment to equal opportunities, human rights standards, etc.
The New Judicial Oath is a welcome proposal, though the use of the term "Realm" could be usefully abandoned as archaic and politically divisive. In addition, as with the proposed police oath/codes, judicial appointments should include explicit referrals to human rights standards and law. There should also be a dedicated facility and resources to ensure judges are fully trained and appraised of the human rights provisions, developments, precedents. This should include experience in other jurisdictions. There should be particular training in disability, gender, race and s.75 and the consequences of the Good Friday Agreement and future Bill of Rights.
The SDLP notes the concern of the Review to achieve the objective of "Representativeness" in the community composition of the Judiciary. The SDLP does not accept that the term "representativeness" is an inappropriate term to use in this regard. What is required is an open recognition of the imbalanced nature of the present senior Judiciary and a frank and sustained attempt to remedy the community imbalance. The Party is puzzled by the decision of the Review not to follow the logic of the commitment to "representativeness" by proposing that as with religious monitoring, there would also be no political or community monitoring of the Judiciary. Surely in an institution as sensitive and as important as the Judiciary every effort should be made to achieve a community/political balance and an important method of achieving this objective is to require both religious and political/community monitoring. The SDLP find this a very curious distinction made by the Review. In addition, candidates for office should be asked about community and ethnic backgrounds and opinion.
There is a need for appropriate outreach measures and that targets and timetables are established and reviewed in consultation with relevant statutory bodies.
The SDLP welcomes the emphasis placed on training for the Judiciary. We believe that such training should be extensive especially in the area of Human Rights, not just the ECHR, but also other international human rights conventions.
The SDLP notes the possible return of powers relating to the Administration of Justice to the devolved NI Assembly. We recognise that this is an accepted matter requiring primary legislation and that it will require cross-community approval under Section 4(5) NI Act 1998. In this regard, however, it should be noted that the party strongly disagrees that the JAC should be established only when justice functions and legislative capacity has been devolved. The JAC should be created forthwith. The developing role of the courts, not least under the Human Rights Act and rights mechanisms, necessitates early confidence in the judiciary which the JAC would help enable. Moreover, any delay in appointments under a JAC may maintain the imbalance in judicial appointments.
The SDLP believes that, in the context of the North, concerns over the role of the judiciary, the Human Rights Act, the centrality of rights provisions in the new policing, justice and political order etc., it is important that a new constitutional court is established. The SDLP urges the earliest and fullest possible consultation on this matter. It is also important that the training of the judiciary takes full cognisance of the new human rights order and constitutional dispensation which is developing in Northern Ireland.
To safeguard the independence of the judiciary and its real or perceived independence, measures to ensure an acceptable ethos in the court, courtrooms free of symbols and declarations, security of and tenure (subject to good practice) and disciplinary mechanisms, should be adopted.
RESTORATIVE AND JUVENILE JUSTICE
The SDLP refers to our submission to the Review which outlined principles that should govern restorative justice. The SDLP re-iterates these principles and believes that their application endures.
The party accepts the four key principles in the Review that should inform restorative justice as being consistent with the SDLP 'principles' and that there are a number of wider factors (legitimacy deficit, inter communal tension, crime prevention, the existence of summary paramilitary intervention and informal community based mechanisms) which need to be considered.
It is essential that illegal organisations have no role, involvement or influence in Restorative Justice schemes. Due to this real or perceived difficulty, at this stage, schemes need to fulfil key principles and be moderate in size and funding.
The SDLP welcomes the proposals for prosecution driver diversion schemes for juveniles, with such schemes modelled on a "partnership" approach and developments generally of restorative justice approaches to juvenile offence. Indeed, it is noted (and anticipated) that "pre-court" diversions strategy may develop in due course and further thinking on this matter in due course may be necessary.
The SDLP agrees that prosecutions should have the power to "refer back" for a police caution and that guidelines are required on good policing and practice for division at police and prosecution levels.
In drawing up guidelines in (5) above on wider principles and requirements of restorative justice schemes, there should be consultation of a community, agency, political and statutory level.
The SDLP supports an inter agency body (or lead agency) to develop restorative justice at a national and local level. This should work close with the Community Safety Unit and other relevant agencies.
The SDLP welcomes consideration of the juvenile justice system as a distinct aspect of the system and are pleased to note the reference to appropriate international standards. We would of course like to see a stronger requirement on the justice system to adhere to such standards.
The SDLP would wish to see the following elements emphasised in the juvenile justice system:

care, best interests & rights of the child;
prevention and diversion;
rehabilitation; and
inter-agency co-operation.

This is a key area of the justice system where policy could make a real difference to the long-term future of young people coming into contact with the system. Resources invested in implementing a system based on the principles above, could result in savings for the justice system as a whole. The aims of juvenile justice should be outlined in legislation.

We welcome the decision not to place younger children in JJCs, but would highlight the need to ensure that the care system is resourced to cope with such children.
We would like to have seen the review explicitly recommend that the age of criminal responsibility limit be raised to at least 14.
The SDLP welcomes this recommendation that 17- year-olds be brought under jurisdiction of youth court.
Having welcomed the previous recommendation, we do not believe that 17 year-olds should be detained with young adult offenders; it is neither in the interest of the young person and runs contrary to the spirit of the recommendation above. It is moreover not consistent with international standards.
Bail information and support schemes, hostel accommodation, speed of assessment, shortest possible remand.
We welcome the review and would draw attention to the fact that additional resources will be required to ensure that wait times for young people are reduced.
Closure of Lisnevin
We welcome this and it should happen as soon as possible.
Given our approach to the aims of the juvenile justice system in terms of a focus on the best interests of the child etc. (see above), the SDLP would prefer to see appropriate funding to allow a number of centres of juvenile custody across the North accommodating small numbers of children. This would facilitate easier family visits and the retention of links with the community, which we view as essential, not least in terms of prevention, rehabilitation and diversion. This is not to dismiss the significant cost implications but if a care-focused, supportive regime could divert children away from long-term criminal activity, clearly the savings would be considerable. We note however, recent government announcement in this regard.
The SDLP is disappointed that the Review did not explicitly recommend exemption for juveniles from emergency legislation.
Research into impact of Criminal Evidence (NI) Order 88
We welcome the recommendation and would like to see it carried out with reference to all appropriate international standards and in close co-operation with the relevant voluntary and statutory agencies.
Para. 10.94 includes welcome suggestions aimed at improving the atmosphere of youth courts. We would wish to see a resource commitment to ensure that recommendation (iv) can be implemented effectively to reduce delays in cases to be heard by youth court.
We welcome the recommendations to review the complaints mechanism system and to provide information to young people. The SDLP would welcome an additional commitment to offer a verbal explanation on the complaints system to all detainees at juvenile justice centres.

COMMUNITY SAFETY
The SDLP endorse the recommendation that relevant agencies should have a statutory responsibility to contribute to public safety.
The involvement of all sections of the community is essential to developing a cohesive and accepted community safety strategy, based on a genuinely inclusive partnership approach. While many bring bad experience to working with others (e.g. past relationships with the police), the co-operative and inclusive approach is required. If this is the spirit and intention behind those who come to community safety strategy, then this will enable local democratic accountability structures to succeed. Such accountability structures should however be based in statute.
The party continues to consider the consequences of the proposal to establish community safety and policing partnerships (CSPPS), which would incorporate the proposed responsibilities of the District Policing Partnerships. There are a number of serious core issues that this proposal raises, particularly the compelling need for effective oversight over and input into policing at a local level and if a dedicated structure is needed to ensure these functions are fulfilled. At this time, free standing DPP's are required.
While the SDLP supports the proposal for a Community Safety Unit (CSU), it is important that its role and relationship is clearly defined and differentiated and that the independence of the sister Policing Board is protected.
The SDLP agrees that the CSU should have a budget to fund community safety activities. It is also agreed that community safety issues should rest with OFM/DFM in the event of the transfer of responsibility.
LAY INVOLVEMENT IN ADJUDICATION
The SDLP is fully committed to the principle of ownership of the administration of justice by the community it serves.
The SDLP believes that it should be noted that the vast majority of the community's closest experience of the administration of criminal justice in this jurisdiction is in the Summary Courts and that this is therefore where the community should feel its ownership most.
The SDLP appreciate that the community at large feels anxious if not over awed by the courtroom experience. A situation where people from the same experience, the same social class etc., as the person attending court are sitting on the bench will alleviate that problem.
The SDLP further recognises that, in the modern era of legal administration, justice systems all over the world and particularly in emerging and new democracies have been attempting to incorporate an appropriate level of lay involvement in their justice systems generally and in the area of adjudication in particular.
A point of importance in relation to lay involvement in the administration of justice in Ireland must not however be overlooked. There has been lay involvement in the lower courts as the Review points out for well over a century. The perceived or real partiality of lay Magistrates and Justices of the Peace has been of concern for nationalists for as long as these positions have been in existence.
The SDLP would argue that the existence of extensive and ongoing training at least to the levels in existence in England and Wales for the lay bench and certainly higher than those currently in existence for JPs in this jurisdiction coupled with rigorous performance checks carried out by the Judicial Appointments Commission should allay those fears over time.
The SDLP would again reiterate that representation of women, of Catholics, of nationalists, of people from ethnic minorities, of younger people and people from working class backgrounds is unbalanced to different degrees from the Court of Petty Sessions to the High Court Bench. This needs to be radically addressed in consultation with the Equality Commission etc.
Obviously while these imbalances will be of interest and concern to the Judicial Appointments Commission and the Equality Commission there would be no better place to start to address these imbalances than with much greater lay involvement at the courts of first instance.
The SDLP would further reiterate that the appointment of lay people to adjudication panels brings relevant non-legal expertise and experience to the bench, thus addressing some inherent imbalances and adding a new perspective to the system.
When we have the opportunity to make changes we should not settle for simply addressing existing problems but also make positive advances. The SDLP feel that the Judicial Appointments Commission should be charged with reviewing the pace of change and that a timetable in relation to training of prospective "Lay Adjudicators" and their appointment to the various courts and panels.
The above are the scenarios which define the SDLPs understanding of the principle of lay involvement in the adjudication and anything less than a sustained and long term funded program of training and ultimately appointments to the courts of first instance will fall short of that principle in the SDLP's view.
While the SDLP is aware that there may be initial difficulties in attracting applicants of a sufficient standard and in sufficient numbers we are confident that these initial difficulties be overcome and that this may involve the Judicial Appointments Commission deciding which criteria and standards are relevant when making these types of appointment.
The SDLP has no concerns about the suggestion that the current bench should engage more in community fora and be exposed to public scrutiny.
In relation to jury trial the SDLP welcomes the remarks in the Review, but would again reiterate its view that all "emergency legislation" should be repealed forthwith.
In the current context we would call explicitly for an end to the inherently unsound Diplock Court system.
PRISONS
The SDLP believes that a further and more fundamental review of prisons and prisoner related issues should be considered. The centrality of prisoner issues in our history and the wider issue of prison policy and practice may necessitate wider consideration.
We would urge the highest compliance and integration to prison policy of relevant international codes.
The SDLP endorses the use of restorative justice sentences, in appropriate circumstances, than the prison option.
We support the replacement of the Life Sentence Review Board and note recent developments on same.
The SDLP would wish urgent attention to be addressed to the problems of holding female prisoners in Magaberry.
The SDLP endorses the response of the Probation Board in relation to the independent status of the Probation Board (Appendix One). We append the Boards response on this matter and endorse same in its totality.
The maximum energy and strategy should be invested in correcting imbalance of representation among prison service staff.
The party endorses the view that the Board of Visitors role in adjudications should end.
The SDLP welcome the recommendation on cultural awareness training and on the review of uniform requirements and urge training on human rights standards.
ETHOS AND CULTURE
The SDLP in general terms welcomes the Review's section on Courts, including its Principles and in large part its recommendations. Where we have disagreed we have stated the reasons for our disagreement.
The SDLP recognises the value of The Courts' Charter for Northern Ireland and its emphasis on improved Courthouse facilities, including improved waiting and consultation areas, more reception or information points and better access for the disabled. We look forward to its revision in the near future.
However, while we support the need for better physical facilities, it is of high importance to provide an environment that is user friendly for all who must use the Courts. That includes witnesses, victims, their families and also defendants' and their families. We therefore endorse the emphasis, which the Review places on these matters, not least the need for all to hear properly and to understand what is taking place in the Courtroom.
We agree with the need that police officers are less prominent as far as the running of the Courthouse facilities are concerned and believe that police officers should have no visibility, though should be available if appropriate.
We also agree and have argued strongly for a politically neutral working environment for the Courts, which is reflective of the principle of parity of esteem, as endorsed in the Good Friday Agreement.
We also re-iterate our view that there needs to be a fresh look at our system of Inquests with a view to altering the Coroner's Rules, to make the process a meaningful independent investigation into deaths. Given the complexities of this issue, we agree with the conclusion of the Review, which recommended an independent review into the law and practice of inquests in Northern Ireland.
We also agree with the Review that further efforts should be made to provide better information and education of the public about the justice system and in particular we support the establishment of court user groups involving in particular the Judiciary at all levels.
We welcome the recommendation in relation to Court Dress. In particular, we welcome the end to the wearing of wigs by Barristers, except for ceremonial occasions.
We also endorse the recommendation that steps be taken to ensure the language used in criminal courts is easily understood by lay people.
We regard the recommendation on the use of the Irish Language in Court proceedings namely "in the wider context of the development of policy on the use of Irish in public life generally," as inadequate. This issue needs to be more fully explored to provide concrete, substantive and immediate measures to enable the use of the Irish Language.
We welcome the Review's recommendation that in order to create an environment in which all those attending can feel comfortable that the interior of Courtrooms should be free of any symbols. In addition we would seek the removal of any symbols from the exterior of existing Courthouses including the Royal Coat of Arms, which the Review specifically excluded. This is subject to any practical considerations, which would render removal difficult, or architecturally undesirable.
As far as the flying of the Union Flag we are opposed to the recommendation that the Union Flag at Courthouse should continue to be in line with flag flying practice at other government buildings, which are the responsibility of the Secretary of State for NI. This recommendation is at odds with the attempt by the Review "create an environment in which all those attending can feel comfortable." We enclose SDLP submission to NI Assembly Ah hoc Committee on Flags (NI) Order in this regard.
We welcome the observation that the declaration "God Save The Queen" on the entry of the Judiciary to the court is unnecessary and the recommendation that the practice should end. We regard the Royal Declaration as both unnecessary and politically divisive.
VICTIMS
The Good Friday Agreement addressed the question of victims, particular in its Chapter on "Rights, Safeguards and Equality of Opportunity." It recognised that "the provision of services that are supportive and sensitive to the needs of victims will [.] be a critical element .". The SDLP endorses the continuing work and developments on victim issues generally.
The particular context and circumstances of the North mean that a number of people are hostile to or have little confidence in the administration of criminal justice.
Therefore, and for wider reasons of victim protection, there needs to be careful thought and strong proposals on issues of victims and the justice system.
The SDLP notes that the Review proposes that different agencies would have the responsibility of working with victims at different points in the criminal justice process; while the review rejects proposals for a separate office with specific responsibility for victims. The SDLP has concerns about the former proposal as victims from a certain background would be anxious at obtaining information relative to their cases, from agencies of the state from which they have been or continue to be alienated.
Moreover, some agencies may view victims in the role of witnesses and this does not enable proper treatment.
The SDLP believes whatever arrangements are made to cater for victims relations with the criminal justice system they should be kept under review to ensure that they are operating as intended. We agree with recommendation 240 which would place a duty on the prosecutor to ensure that the court is fully aware of the impact of the crime on the victim. However, this should not be an alternative to evidence beyond reasonable doubt as the standard which should determine criminal judgements. A similar observation applies also to recommendation 241.
LAW REFORM
SDLP welcome the recommendations concerning the establishment, mandate and membership of an Independent Law Reform Commission for Northern Ireland (recommendations 244, 245, 246, 247, 248 and 252).
As proposed, responsibility for law reform should be assumed by the Minister(s) responsible for justice matters and the proposed Department of Justice, and that the Commission should have a sufficient budget.
The SDLP believes that following the appointment of a separate Attorney General for Northern Ireland, responsibility for appointing Law Reform Commission members should pass to him/her; procedures should be put in place to ensure that there is the necessary cross-community support for the members.
Until an Attorney General is appointed, the Secretary of State should consult the First Minister and Deputy First Minister prior to appointing the members of the Commission.
We welcome the prospect of co-operation between the Law Reform Commission in both parts of Ireland, and consider that a vigorous programme of work should take account of this.
ORGANISATION, STRUCTURE, RESEARCH AND EVALUATION
We welcome the proposal that a broad range of criminal justice functions should be devolved to the Assembly, and that these could be the same as are currently devolved to the Scottish Parliament. This will embed the political process and the intentions of the Agreement.
Following devolution, it is proposed responsibility for all justice functions, except the independent prosecution service, the Law Reform Commission and judicial matters, be brought together in a single Department of Justice. The SDLP agrees that there should be a single Department but reserves on whether it should be integrated into OFM/DFM.
We would wish to be consulted, in accordance with paragraph 7 of the Policing and Justice section of the Good Friday Agreement, on the timing of the new elements to be introduced under the CJR and in particular those relating to devolution, Devolution should happen only when there is satisfactory implementation of policing and criminal justice change.
SDLP endorse the proposals for parliamentary oversight.
A Statutory based independent Criminal Justice Inspectorate will have a crucial part to play in ensuring independent oversight of, and public confidence in, the criminal justice system. The appointment at its head of a high calibre person who will enjoy the full confidence of both communities is necessary and should be in consultation with FM/DFM.
It may be necessary to consider the need for a Northern Ireland-based Criminal Cases Review Commission, in the event of devolution of criminal justice.
There is a need for additional funding and staff to tackle the backlog of cases in the current CCRC.
Persons applying to the Commission for a review of their convictions have experienced difficulty in obtaining information about the progress of the Commission's consideration. This should be addressed.
The Forensic Agency and the State Pathology Department should be completely independent from the police and prosecution. The Forensic Science Agency should be moved at an early state to new accommodation which would not be shared with the police.
STRUCTURED CO-OPERATION
It is understood that this has been the subject of extensive and useful consultations between the Review Group and the Government of Ireland.
The role of the group of criminal justice policy makers from both jurisdictions should also extend to the identification of possible obstacles and follow-up on decisions made. Its role should be greater than advisory.
SDLP would welcome consideration of the facilitation of temporary transfer of prisoners between this jurisdiction and that of the Republic, in situations such as those suggested by the Review.
Recommendation 292 proposes the harmonisation of law between the four jurisdictions. This should be a matter for the respective Law Reform Commissions. However, this should become an imperative for the respective NI and RoI Commissions. It is the view of the SDLP that harmonisation would bring practical benefit to the citizens of the island, enable greater protection of citizens, the environment and the public welfare and be cost-efficient.

SOCIAL DEMOCRATIC AND LABOUR PARTY
June 2001

Ulster Unionist Party

Introduction

The Ulster Unionist Party again wishes to reiterate its view that the criminal justice system within Northern Ireland has on the whole served the people of Northern Ireland well for many years. We wish to pay credit to all of those men and women who have worked within the criminal justice system in an impartial and professional manner during a period of our history, which has been so particularly, troubled. We especially pay tribute to all of those men and women whether members of the Judiciary or other agencies of the criminal justice system who have been injured or tragically lost their lives during this period.

The Ulster Unionist Party along with the other participants of the Talks process has endorsed the proposals contained within the Belfast Agreement of 1998 and supports the aims as expressed within that agreement in relation to the criminal justice system. Namely that the aims of the criminal justice system are to:

Deliver a fair and impartial system of justice to the community
Be responsive to the communities concerns, and encouraging community involvement where appropriate;
Have the confidence of all parts of the community; and
Deliver justice efficiently and effectively.

The review of the criminal justice system offered the opportunity to examine at first principals the current system against these agreed benchmarks and where necessary instigate new ways of operating in order to further improve the already high standard of service that the criminal justice system delivers to the people of Northern Ireland.

The Ulster Unionist Party does regard the context of any examination of the legal system as important and wishes to again express our view that whilst Northern Ireland operates as a separate Jurisdiction it does so within the context of the whole of the United Kingdoms legal system. Many of our laws and practises are largely the same as England and Wales and we believe that we benefit strongly from being part of a larger whole. It is the view therefore of the Ulster Unionist Party that any changes which are proposed should maintain a significant degree of parity with the rest of the United Kingdoms legal system.

The Ulster Unionist Party views as one of the key objectives of the review of criminal justice the early devolution of Criminal Justice functions to the Northern Ireland Assembly and executive. We warmly welcome the Government's commitment to devolve policing and justice functions after the Assembly elections in 2003 and consequently urge the government to keep to its timetable for devolution.

In responding to the implementation plan and draft Justice Bill published by the government we will attempt to offer an analysis and opinion from the perspective of the Ulster Unionist Party. For ease of access they will be grouped under the headings used in the implementation plan. Where no comment is made in relation to some of the recommendations the Ulster Unionist party reserves its position on those issues. The Ulster Unionist Party working group on Criminal Justice will also be submitting further comments and this document should be read in conjunction with those further comments.

A) Human Rights and Guiding Principles

1. It is important that in consideration of any system of criminal justice that there is widespread support for and acceptance of its underlying values and objectives, this is essential if any such system is to retain the confidence of all parts of the community.

2. Therefore the Ulster Unionist Party supports the government's intention to allow the requisite public authorities to develop a strategy for delivering this awareness of human rights issues.

B) Prosecution

1. The Ulster Unionist Party continues to support the creation of a single independent prosecution service.

2. The Ulster Unionist Party reiterates its view that recommendation 66 of the governments Implementation plan should be carefully considered. The mistakes made in England and Wales in transferring prosecutions to the Crown Prosecution service and highlighted in the Glidewell report should not be made in Northern Ireland. It is essential that the structural organisation and staffing of the Public Prosecution service be sufficiently devolved to prevent the development of an over centralised bureaucracy.

3. We note recommendations 37 and 39 that seek to expand the prosecution services ability to deal with offences through mechanisms other than formal court proceedings. In particular the introduction of a system of prosecutorial fines would be welcomed. The Ulster Unionist Party would restate its concern that in considering any form of prosecutorial diversion the defendant should be properly and independently advised prior to any admission of guilt.

C) Judiciary

1. The central principle in all appointments to the Judiciary should remain the merit principle. The independence of the Judiciary should also be strongly defended and we would support the expression of judicial independence contained in the Draft Bill.

2. The Ulster Unionist Party supports the development of greater transparency in the appointment of members of the judiciary.

3. We strongly object to the change being proposed at recommendation 96 that a new Judicial oath be substituted removing the reference to Her majesty the Queen. The Ulster Unionist party restates our view that Northern Ireland is an integral part of the United Kingdom and as such the position of the Monarch as head of state should be expressly recognised in the judicial oath of office.

D) Courts

1. The Ulster Unionist Party is generally supportive of the concept of attempting to ensure that procedure and ways of working do not create barriers and also recognises that certain symbols can cause difficulties within the nationalist community in particular. However we would express objection to the concept of simply removing all symbols on the basis that to do so would have a severely deleterious effect upon the confidence of the unionist community in the criminal justice system. The present symbols of the criminal justice system, namely the Royal Coat of Arms, to a large extent reflect the historical and constitutional linkage of Northern Ireland to the rest of the United Kingdom and to simply remove all symbols from the criminal justice system would appear as a direct attack upon that very linkage which is so important to the identity of the unionist community. For this reason the Ulster Unionist Party strongly opposes clause 62 of the Justice Bill as currently drafted. We therefore reject recommendation 141 and would be of the view that that Royal Coat of Arms should be retained in all courtrooms.

2. The flying of the Union Flag should also continue on designated flag days at all courthouses in line with current regulations and we would also particularly note the comments of Mr Justice Kerr in the case of In Re Murphy "by thus conferring days on which the (union) flag is to appear, the Secretary of State (Mr Mandelson) sought to link the correct balance between Northern Irelands constitutional position, and . not giving offence to those who oppose it, that approach seems to me to exemplify a proper regard for 'partnership, equality, and mutual respect and fulfils the governments undertaking that its jurisdiction in Northern Ireland 'should be exercised with rigorous impartiality on behalf of all the people in diversity of their identities and traditions'... I do not consider therefore, that the Flags regulations have been shown to be in conflict with the Belfast Agreement.'

E) Restorative and Reparative Justice

1. We would draw a distinction between serious or organised crime and minor or petty offences. We would recognise that with regard to serious or particularly organised crime the Police are in the front line and can most effectively combat this form of crime. With regard however to forms of minor crime the community has a role to play. It is this sort of minor petty crime that afflicts the vast majority of society and this is the area through which the majority of people are likely to come into contact with the criminal justice system.

2. The issue of restorative justice is another area that currently causes a degree of concern to the Ulster Unionist Party. Restorative justice has been shown in many other jurisdictions to have a positive effect especially with regard to juvenile offenders and the evidence from such jurisdictions as New Zealand is persuasive as to the benefits of the restorative justice concept. There is a great deal to be said for making offenders face up to the consequence of their offending behaviour and the hurt that they have caused to their victims. The difficulty within this jurisdiction is that in many areas restorative justice programs can be hijacked or controlled at the outset by members of paramilitary organisations and in practice become simply fronts for the kind of vigilante style justice that is meted out by the paramilitaries on a nightly basis.

3. For the above reasons the Ulster Unionist party is broadly supportive of the concepts involved in restorative justice but we would in particular draw attention to recommendation 144 and 146. Any development of a restorative justice scheme should be carefully controlled and monitored as well as being wholly integrated into the Juvenile justice system. It is also essential that appropriate safeguards be introduced to protect the rights of the victim and the defendant.

4. The Ulster Unionist party would be very concerned about recommendation 168, which involves community restorative justice schemes. In particular we agree with the recommendation that, they should only receive referrals from a statutory agency, laid down by government; they should be subject to regular inspection by the criminal justice Inspectorate; and should have no role in determining guilt or innocence. We would be strongly of the view that any such community restorative justice schemes must be tightly regulated and the guidelines for such schemes should be available for public consultation at the earliest opportunity.

F) Organisation of the Criminal Justice System

1. In due course the Ulster Unionist Party would envisage the transfer of justice functions to the Northern Ireland Assembly. We would welcome such a transfer and believe that a reasonably early transfer of functions should be an objective in order to put in place strengthened lines of local accountability for the operation of the criminal justice system. We therefore welcome recommendation 256 which states 'after the next Assembly election in 2003' as a target for devolution. We would however strongly support an early assessment of the necessary administrative structures within the Assembly and executive to facilitate this transfer at the earliest opportunity after the Assembly elections in 2003.

2. The Ulster Unionist Party strongly supports the extension of recommendation 263 and the amendment of the Draft Justice Bill to include the Police Ombudsman in the list of bodies subject to inspection by the Criminal Justice Inspectorate. We believe that this would go a long way towards securing the reputation of the office of the Police Ombudsman and should in no way detract from the operational independence of the Police Ombudsman's office.

G) Structured Co-Operation.

1. The Ulster Unionist Party supports sensible co-operation between the two Jurisdictions on this island where it has positive benefits for both jurisdictions.

2. The Ulster Unionist Party notes the intention to create a working group under the auspices of the British-Irish Intergovernmental Conference. We would however restate our view that the existing arrangements in the North-South Council and more importantly the British Isles Council should be utilised. We would also be strongly of the view that no moves to extend North-South cooperation should be made without consultation with the Northern Ireland Executive. The Belfast Agreement has already defined the areas of North-South co-operation in Strand 2. We would further state that any as required by Strand 2 paragraph 12 of the Belfast Agreement any further development of North-South arrangements should be subject to agreement by the Assembly and Oireachtas. We believe any attempt to introduce new areas of structured North-South cooperation would be in breach of the terms of the Belfast Agreement.

ULSTER UNIONIST PARTY
January 2002

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Appendix 5

Written Submissions

Include Youth and the Children's Law Centre 145

The Committee on the Administration of Justice 151

The Law Society of Northern Ireland 161

The Northern Ireland Human Rights Commission 163

The Probation Board for Northern Ireland 177

Include youth and the children's law centre
Written SUBMISSION

General Comments

The timescale for consultation is too short to allow for detailed responses to be prepared. It is not reasonable to expect that the findings of the Criminal Justice Review have simply been placed into legislation as we have found deviation in significant places.
There has been no consultation with children and young people on the Draft Justice (NI) Bill. In our view this is in breach of the requirements under Section 75 Northern Ireland Act 1998. We recommend that a young person's summary of the implications of the Bill should be prepared and that workshops with children and young people are organised to facilitate discussion.
There should be representation from the voluntary sector on the criminal issues group recommended (Recommendation 130).
Lay Magistrates
Article 12; We would suggest that Article 12b) is deleted as we would recommend that all lay magistrates should have completed training before being appointed, including mandatory training on the United Nations Convention On The Rights of The Child, other relevant international human rights instruments and children's rights under The ECHR as incorporated by The Human Rights Act 1998.
The appointment of Lay Magistrates should be public and transparent. We agree with Recommendation 119 of The Implementation Plan in relation to the selection procedure and making criteria for selection publicly available.
All lay magistrates and magistrates/judges dealing with children's cases should be vetted and checked through the PECS system. This should be a statutory requirement. The proposals for a Protection Of Children Act currently being circulated will not, as currently drafted make such checks mandatory.
Implications Of T& V v UK
The Practice Direction issued by The Lord Chief Justice should be modified to apply to all proceedings in the Youth Court. Any new legislation about the Youth Justice system should enshrine the principles of participation and understanding, as these are central to every child's right to a fair hearing guaranteed under Article 6 ECHR as incorporated. We have suggested amendments to The Justice (NI) Bill to ensure that these rights are incorporated. (See section on Participation and understanding)
Crown Court trials of young people could be carried out in the Youth Court in all but the most serious cases and the Crown Court Judge could be accompanied by two lay magistrates.
Youth Justice

Section 49 Aims of Youth Justice System
This sections appears in it's principal aim to directly contradict the recommendation of the Criminal Justice Review as described in recommendation 169 and elaborated upon in paragraph 10.65 of the full report.
The report and recommendation mention international standards of children's rights with the former clearly stating the belief that the aim of a juvenile justice system should be "the prevention of offending" paying particular regard to the provisions of the UN Guidelines for the Preventions of Juvenile Delinquency (Riyadh Guidelines) and the UNCRC. These are as follows:
The Riyadh Guidelines state that: The prevention of juvenile delinquency is an essential part of crime prevention in society."

The UNCRC states: "States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth which re-enforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and desirability or promoting the child's re-integration and the child's assuming a constructive role in society."

Also

The Crime and Disorder Act 1998 also states that the aim of the youth justice system in England and Wales should be to "prevent offending by children and young persons."
The above are contrary to the principal aim as stated in the draft legislation. The right of the public to expect protection form offending should be a key outcome of any effective youth justice system but should not, we would argue, be the principle aim. We also agree that the public would believe that they should be protected but disagree that public opinion can be allowed to direct legislation on such an emotive subject. There is clear evidence that "public opinion" as expressed through popular media is extremely punitive on the way young people who offend should be treated by the courts and others. We appreciate that public perception of the youth justice system is important and believe that the full implementation of recommendation 191 (development of communication strategy) is vital in this area and will go a long way to assisting the public to understand the purpose of the way that the youth justice system operates.
We recognise that subsequent sections in the draft legislation expand on other aims which we are more comfortable with. However we feel that they may be lost by the stated principal aim, which has little regard to the child. This places this legislation in conflict with the Children Order, 1995 which recognises paramountcy of the child's welfare. In view of the evidence that these young people who offend are often the most vulnerable in our community we cannot accept a position where they are treated differently from other vulnerable and challenging children. These young people must appreciate the consequences on others and themselves if re-offending is to be prevented and this can only be achieved within an intervention which addresses the child's needs.
Therefore we believe that the principal aim of the youth justice system should be amended as follows:
"to prevent offending having taken into account the best interests of the child as the paramount consideration"
In our submission to The Criminal Justice Review we set out 38 Guiding Principles for the juvenile justice system. The Criminal Justice Review recommended that a statement of aims and principles should be reflected and incorporated in legislation. It was recommended that this should include a statement about the best interests of the child as a primary consideration and about the prevention of offending/diversion and rehabilitation. In our view this has not been done.
We would very much welcome the opportunity to discuss this with The Northern Ireland Office and have enclosed copies of our original submissions to The Criminal Justice Review, which may be of assistance in redrafting this clause. Section 2 deals specifically with Guiding Principles, Values and Objectives grounded in internationally accepted children's rights standards.
We would also recommend that the same phrases are used throughout the system be it a "juvenile justice" (Criminal Justice (Children) (NI) Order, 1998) one or a "youth justice" system.
Participation And Understanding
We recommend that Clause 36B (4) and (5) should apply to the making of all orders in respect of juvenile offenders and should be placed at the beginning of the section on juvenile justice and should read
Before making any order in respect of a juvenile the court shall explain to the child the nature of the proceedings and where the child is charged with an offence the nature of the charge. The explanation shall be given in simple language suitable to the child's age and understanding. (This wording reflects Article 5(2) Magistrates Courts (Criminal Justice (Children) Rules (NI) 1999.) The wording of Article 36B (5) could then be inserted beneath.

The Age Of Criminal Responsibility
It is our view that the age of criminal responsibility in this jurisdiction is much too low at 10. We believe that this should be raised significantly. We recommended in our original submission that there should be widespread consultation about this issue alone, but regretfully this has not happened.
The United Nations Committee On The Rights Of The Child has already indicated that our age of criminal responsibility is unacceptable and we believe that the failure by government to take this opportunity to deal properly with this issue will be perceived by The Committee as a continuing breach of children's rights in this jurisdiction.
Reparation Orders
At Article 36A 5) there should be a requirement that the Report should include an assessment of the child's needs including psychological and educational needs.
Article 36 B 1) this section should refer toinformed consent .The concept of informed consent should be reflected throughout the legislation. We appreciate the challenges that genuine informed consent brings with it but believe all efforts should be made to ensure that the child or young person fully understands what they are being asked to undertake.
Article 36(5) we recommend that this should read The Secretary of State shall make rules for regulating the making of reparation.
Community Responsibility Orders
Article 36H; We recommend that this should read, "The Secretary of State shall make rules".
Custody Care Orders
The mechanism of custody care orders is burdensome and in our view it would be a much better option to raise the age of criminal responsibility to 14 and to deal with children and young people under this age in accordance with the relevant provisions of The Children (NI) Order 1995.
If the children need to be accommodated the care system in accordance with the recommendations of The Children Matter Report SSI 1997 should be provided with funding to ensure it is in a position to provide a range of specialist and differentiated accommodation to cope with the needs of all children in the system.
The Criminal Justice Review recommended that 10 - 13 year olds should be dealt with in the care system.
In our view this means that children and young people aged 10-14 should not enter the criminal justice system at all. Their needs should be provided for within the framework of The Children (NI) Order 1995,associated Guidance and Regulation and we should formally introduce the assessment framework for children in need under The Children (NI) Order to ensure that children and young people who are identified as being at risk of offending are comprehensively assessed and provided with help to ensure that they are diverted from the Juvenile Justice System.
The appropriate and responsible authority for custody care orders has been identified as the DHSS PS. It is our understanding that the DHSS PS are bound by the principles enshrined in The Children (NI) Order 1995,in particular by the best interests principle.
It is difficult therefore to reconcile this with the fact that Article 44B 2) appears to allow for derogation from The Children (NI) Order 1995 in respect of custody care orders. We have set out below an analysis of Article 44B2);
Article 3 Children (NI) Order 1995 i.e. the paramountcy of the best interests of the child and the welfare checklist has been expressly excluded to decision-making processes in relation to the making of custody care orders. This is not acceptable. If this legislation seeks to deal with children of 10 - 13 within the care system, we cannot exclude Article 3, which is one of the cornerstones of our childcare system.
Article 3 Children NI Order 1995 should be expressly included at Article 44 B 2) Justice (NI) Bill.
Article 36 (2) and (3) Children (NI) Order 1995 are expressly excluded. These deal with the Trust's authority to grant assistance with education and training. Are children who have been subject to custody care orders to be excluded from this financial help?
Article 36(2) and (3) should be expressly included at Article 44 b 2) Justice (NI) Bill. Careful consideration should also be given to ensure that these children are included under the pending Leaving Care Bill, which seeks to enhance protection for children leaving care. Custody care orders must be specifically included in the eligibility criteria.
Article 45 Children (NI) Order 1995 which provides a strict mechanism for placement Regulation and Review is excluded from 44 B 2). This begs the question is the child a "looked after" child or not? It appears that children held under custody care orders will not be subject to the stringent requirements in relation to looked after children as Article 44B5) specifically states that care orders shall cease to have effect when children are held under a custody care order.
Article 45 Children (NI) Order 1995 should continue to apply to children subject to custody care orders. All of these children should have a detailed care plan and if they are already looked after their care plan should continue to be monitored and reviewed by their social worker.
It is unclear from the draft legislation who has parental responsibility for the child. Normally under a care order the Trust shares parental responsibility with the parents, but this would not appear to be the position under a custody care order.
We do not agree with Article 44 A 8). We believe that children should stay in a care setting until their 14^th birthday when they can be moved if necessary. Under the Article as currently drafted any child who is 13 ½ will be going straight to a juvenile justice centre.
The custody care order is punitive in nature and seems remarkably similar to a juvenile justice centre order.
In summary, the custody care order in our view does not resolve the particular issues concerning 10-13 year olds in custody.
On reading the recommendations in this regard from The Criminal Justice Review we had envisaged the use of specialist residential provision to look after these children with access to suitable educational, social and psychological support services, which would be planned on an individual basis with each child and that such plans would be subject to scrutiny by the courts.
We do not agree with the introduction of custody care orders under the legislation as currently drafted. We believe that further consideration needs to be given to ways of implementing the recommendations of the Review Body appropriately and that this will have to involve discussions with DHSS PS about suitable provision in a care setting.
Definition Of A Child
We agree that 17 year olds should be included in the Youth Justice System. We note the restrictions on the use of juvenile justice centre orders at Article 60 and would be opposed to 17 year olds being sent to the Young Offenders Centre at all.
Youth Conference Orders
We welcome the introduction of Youth Conferences and particularly of the introduction of legal aid for diversionary youth conferences and court ordered youth conferences as it is our opinion that a young person should be entitled to legal representation at such a conference if s/he wishes.
The Criminal Justice Review referenced specifically (9.66) the need for clarity with regard to the relationship between the conference, pre sentence reports and the information needed by the court. We recommend that Regulations specifically refer to these procedural matters.
We anticipate that there will be tensions between the ordering of pre-sentencing reports or youth conferences and we believe that the regulations should be clear as to the criteria and protocols governing which should be prepared. There may be certain offences where a conference is inappropriate or there may be information that may be too sensitive to share. Therefore there should be flexibility to allow a youth conference co-ordinator to recommend, once a young person has been interviewed, that a conference is not appropriate and that a PSR should be prepared (by the appropriate authority) instead. Consequently the co-ordinator would need to be appropriately trained to sensitively interview a victim, a young person and their family etc.
We also have concerns about a young person's ability to take part in a conference and would recommend that this is not necessarily viewed negatively by a court instead. Instead it could simply indicate the type of work that needs to be undertaken with the young person to aid with taking responsibility for their actions.
The comments we have made with regards to "informed consent" of the young person also apply in all areas of conferencing and restorative justice.
Closure Of Lisnevin Juvenile Justice Centre
We recommended in our submission to The Criminal Justice Review that Lisnevin Juvenile Justice Centre should close. It is our opinion that closure needs to be expedited and trust that the provisional date of Autumn 2002 will be acted upon.
Information
We recommend that legislation should require the Agency responsible for Youth Conferencing to produce comprehensive information on an annual basis about Youth Conferences and about programmes and options that are available to young people as part of the Youth Conference Orders. This is a specific recommendation of The Criminal Justice Review (9.86)
On a wider point we would wish to see a legislative requirement on the responsible authority to provide comprehensive annual information about the Youth Justice System in Northern Ireland and about the disposals available. This should be in a format, which is young person friendly and accessible. This would ensure that The Northern Ireland Office is acting in accordance with its statutory duties under Section 75 Northern Ireland Act 1998.
Include Youth and Children's Law Centre produced a version of the Criminal Justice Review for children and young people in poster form and the Children's Law Centre have recently produced a leaflet on the juvenile justice system as part of a broader series of leaflets specifically designed for young people.
We recommend that the Northern Ireland Office produces a version of The Justice (NI) Bill for young people accompanied by a leaflet about the proposed changes and that in future leaflets are produced outlining disposals available within the Youth Justice System with useful contacts and services/programmes outlined.

INCLUDE YOUTH AND THE CHILDREN'S LAW CENTRE
December 2001

committee on the administration of justice
written submission

Introductions: The CAJ delegation will consist of Martin O'Brien (Director), Paul Mageean (Legal Officer) and Maggie Beirne (Research and Policy Officer).
General problems with the Implementation Plan: there are almost three hundred recommendations in the Plan. There are very few deadlines for implementation of any of these. The recommendations are also the responsibility of very many separate criminal justice agencies. There is however no mechanism for oversight of the implementation of the recommendations. In the absence of such a mechanism, we believe the changes promised in the Review will prove difficult to track and the reality is that the implementation of many of the recommendations will be very slow. Another factor militating against speedy implementation is of course the fact that many of the changes are subject to devolution of criminal justice powers.
Human Rights and Guiding Principles: while we welcome the centrality afforded by the Review to human rights in the process of change, we are concerned that in relation to many issues including for example human rights training, defence lawyers, complaints mechanisms, and equity monitoring, there are significant problems which will delay real change.
The Prosecution Service: CAJ are deeply concerned that many of the most important changes recommended by the Review team in relation to the prosecution service have been significantly undermined in the Implementation Plan. The Review said they envisaged "major changes in the prosecutorial arrangements in Northern Ireland, which we believe will enhance the system and public confidence in it." However, what the Implementation Plan suggests is essentially a new name for the office but little substantive change.
The Judiciary: CAJ has a number of concerns about the implementation of the recommendations on the issue of the Judicial Appointments Commission including in particular the fact that the creation of the Commission will have to await devolution. In addition we are concerned that the Lord Chief Justice will not have to consult his colleagues on the issue of appointments to the Commission nor is he under any obligation to ensure his appointments are reflective of the community. The absence of a timescale in ensuring a more reflective bench is also of considerable concern. The recommendations on judicial training leave, in our view, too much to the discretion of the judges themselves.
The Courts: the recommendations in this section include important areas such as the inquest system, simplification of dress, symbols and public outreach and information. Once again, as with other recommendations, we are concerned that the plans for implementation of these matters are weak and will lead to undue delay.
Equality: while of course we are pleased that the government has extended its deadline for responses to the Plan and Bill until 7^th January, nevertheless we are deeply concerned that the equality aspects of the government response to the Review continue to pose serious problems. We do not believe that the consultation as currently established could possibly be described as "timely, open and inclusive" as recommended in the Equality Commission's Guide to the Statutory duties.

COMMITTEE ON THE ADMINISTRATION OF JUSTICE
4 December 2001

committee on the administration of justice
supplementary submission

Introduction
CAJ worked extensively on the Criminal Justice Review itself. We made a lengthy submission and then met with the Review for a discussion of the issues we had raised in the submission. We subsequently made two additional submissions concentrating on the Finucane case and the Treacy/Macdonald judicial review. In conjunction with the International Commission of Jurists (ICJ) and the Queen's University of Belfast, we organised a private seminar for members of the Review with a number of respected international legal practitioners and human rights lawyers. This took place over two days in Belfast.
When the Review published its report we submitted further lengthy comments to the government during the consultation period which it established.
Our submissions concentrated on four main areas: human rights, the prosecution service, the judiciary and the courts. Our comments on the draft Implementation Plan and the Bill also focus on these areas.
Generally we are disappointed at the contents of the Plan with regard to these four areas. Some of the weaknesses we have identified are related to the failure of the Review to make particular recommendations. However, more worryingly the Plan appears to mirror substantially the initial Patten Implementation Plan in that its main purpose seems to be to undermine some of the more significant proposals made by the Review particularly in the area of the prosecution service.
Structurally we have identified two main problems which may be due to omissions on the Review's part but which will create ongoing problems now. The first is that, unlike in Patten, there is no independent mechanism for oversight of the changes envisaged. The case for such oversight in this process is perhaps more compelling than in Patten given that the change will affect many different agencies and institutions. It is therefore crucial to have someone charged with ensuring that change occurs and at the appropriate pace. Leaving this to the NIO or the different agencies will not inspire confidence that change will actually occur given that it was the unsatisfactory performance of those very different agencies which presumably motivated the parties to the Good Friday Agreement to establish the Review.
The second major problem which is closely related to the first is that in the vast majority of the recommendations there is no timescale for implementation. Anyone familiar with the process of change in any organisation will immediately recognise this as a major block to delivering change. Firm deadlines must be set if this Plan is to be considered as a contribution to the process of changing the criminal justice system.
Combined, these two problems mean that those who have been most resistant to change, who have caused many of the problems which have plagued the system, have now been placed in charge of the process of transformation and can implement the changes almost entirely at their own pace.
We are particularly concerned about the above failings because in our response to the report of the Criminal Justice Review in August 2000 we said we were "disappointed that the implementation of the report's recommendations has been left solely in the hands of the civil service. The absence of any independent element in the implementation of the report makes its recommendations all the more vulnerable to dilution and to the opposition of elements within the existing criminal justice system which are firmly opposed to some of the more far-reaching changes suggested."
We also pointed out that leaving implementation in the hands of government was all the more unsatisfactory given that the Review was government-led and that the recommendations of the Review were subject to comment by relevant government departments and others in advance of publication.
Human Rights and Guiding Principles
Recommendation 1 & 11 - Human Rights Training
The human rights training of criminal agency staff considered necessary by the Review is essentially left to the discretion of the relevant agency. No timescale is set by which this will be done. We believe this training should be centralised and a definite timetable should be set.
The training of lawyers in human rights principles, which is also dealt with under this section of the Plan, is the responsibility of the Institute of the Professional Legal Studies as is general legal training for all trainee lawyers. Such students at the moment receive perhaps one day of human rights training. Audits are not necessary. A human rights course at the Institute should be commenced. Who will ensure this happens and when will it happen?
Recommendation 2 - Criminal Justice Aims
The text in the Plan in relation to this recommendation is unclear. Will the Strategic Statement of Purpose and Aims be subject to public consultation?
Recommendation 4 - Reflective workforce
While this recommendation is accepted, nothing concrete is promised to make the workforce more reflective. CAJ remain concerned that efforts in this regard appear to be dependant on devolution. There is no reason why this should be so. While technically in line with the recommendation of the Review, work should begin now to make the workforce in the criminal justice field more reflective of the community. A target date should be set by which this should be achieved.
Recommendation 5 & 6 - Equity Monitoring
The issue of equity monitoring is critical in terms of public confidence in the criminal justice system. However, we are very concerned that this issue is left in the hands of the criminal justice agencies with no timetable for implementation. We would also be concerned that this research is carried out by independent research institutions rather than internally by the various agencies or the Criminal Justice Board and that a timetable be set.
Recommendation 7 - Statement of Ethics
The Plan provides no timetable for the publication of statements of ethics. There is also no commitment to consultation on the various statements. This recommendation arose in the course of a discussion in the review document about membership by members of the judiciary of secret oath bound organisations. However, the Plan does not highlight this as a particular issue to be considered by each agency in drawing up its statement of ethics and there is no indication as to who will draw up the statement of ethics for the judiciary themselves and if it will be subject to consultation. These deficiencies should be remedied.
Recommendation 8 - Membership of Organisations
The Plan indicates that this recommendation will be subject to further consideration. However it appears that the Plan confuses proscribed organisations and those which may act contrary to the interests of the criminal justice system but which are not illegal. The Review is not completely clear on this issue but its recommendation followed the discussion related to secret oath bound organisations.
It is indicated in the Plan that "further work" is needed in this area. Who will do this work? If the concern is that there may be problems with freedom of association why can there not be a register of interests particularly for those who are members of the judiciary, the senior bar or the prosecution service? Surely it is highly relevant in a judicial review concerning, for instance, the right to march to determine if any of the key players involved are members of the Orange Order.
Recommendation 9 - Defence Lawyers
It is simply unacceptable to leave the sensitive issue of intimidation of defence lawyers to be dealt with on a piece meal basis by each agency as and when (and if) they see fit.
In addition it is clear that if threats are being directed at defence lawyers, the Special Rapporteur was of the view that an independent investigation needed to take place. Police investigations do not meet this test. Some new mechanism needs to be put in place to deal with this type of case.
Recommendation 10 - Bursaries for Legal Training
This recommendation is accepted only in principle. If this is for purely funding reasons, this is unacceptable. Particularly for those students who wish to go to the Bar, assistance is necessary as the majority of judges are of course drawn from the ranks of the Bar. Not to provide bursaries will tend to restrict prospective Bar students to certain narrow social backgrounds.
Recommendation 12 - List of Experts
It is unclear from the Plan if the Law Society has yet compiled such a list or when it will do so. The Law Society needs to do so and by a certain date.
Recommendation 16 - Complaints mechanisms
It is simply unacceptable to leave such a vital recommendation to the discretion of the individual criminal justice agencies with no timescale in place and apparently no guidelines issued as to what the mechanisms should look like. It is also insufficient to leave review of these matters until after devolution which in effect means at the earliest mid 2003. The creation of complaints mechanisms should be centralised and subject to a deadline.
Prosecution
Recommendation 17 and 58 - Single independent authority and renaming DPP
The Review's recommendations in relation to the DPP were among the most far-reaching made. While the Review indicated that the work of the new office would build on the work of the existing office they also said their recommendations entailed "taking on new work, a different approach to aspects of its existing work and substantial organisational change". Also at the press conference to launch their report they refused to deny that their proposals in this regard meant the abolition of the DPP. The Review said they envisaged "major changes in the prosecutorial arrangements in Northern Ireland, which we believe will enhance the system and public confidence in it." However, what the Implementation Plan suggests is essentially a new name for the office but very little substantive change. Indeed the Plan recommends the same title for the professional head of the office. In this recommendation the Plan clearly undermines the process of change in this key area. Indeed the Review recommended the importance of change in relation to the description of the professional head of the office, when they said that "[A] new title for the head of the organisation would help to demonstrate to those outside it, as well as those inside, that the remit and responsibilities of the organisation have changed considerably." The Director who made the much questioned decisions in relation to a number of controversial cases including the Finucane murder investigation will have "overall responsibility for creating the new service." How will new mechanisms for accountability, outreach and recruitment function without clear signals that this organisation, which has been so unaccountable to date, is finally being made subject to real and effective change?
Recommendation 19 - Powers in article 6(3)
Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 allows the DPP to prompt police investigations. This recommendation was informed by the comment at 4.19 of the report that "In practice article 6(3) is formally invoked on rare occasions." The inclusion of this recommendation by the Review is therefore clearly intended to ensure that 6(3) is used more widely and indeed it has the potential to provide the prosecution service with a much more pro-active role. The Plan gives no sense that this will be the case. It simply amounts to a restatement of the existing provision in the new Bill and a reference to it in the new Code of Practice. Once again there is no timescale beyond it all being dependent on devolution of criminal justice. The Code of Practice should indicate a willingness to use the power more regularly and also a timetable should be set by which the Code of Practice should be published.
Recommendation 22 - Advise to police on prosecutorial issues
The Review did not make the clear distinction the government do between prosecutorial and investigatory advice. Indeed if one looks at para 4.135 it is clear the Review envisaged a much more proactive role for the prosecution service. The Review stated that while "we do not envisage prosecutorial supervision of investigation, we were impressed by the strength of the arguments for early involvement of a prosecuting lawyer in police investigations in the more complex and serious cases." The Implementation Plan leaves the decision as to whether the prosecution should be involved at an earlier stage completely at the discretion of the police.
Recommendation 46 - Relationship between prosecution and attorney general
In relation to this recommendation, the Review recommended that there be statutory provision for consultation between the Attorney General and the head of the prosecution service. The Review clearly envisaged consultation between the two in relation to individual cases because in para 4.162, they discuss what would happen if the two disagreed on a case. However section 38 of the Bill which makes provision for statutory consultation appears to indicate that such consultation can only take place in relation to matters for which the Attorney General is accountable to the Assembly. This of course, by virtue of section 23 of the Bill, probably does not include individual cases. Section 23 allows the Attorney General to refuse to answer questions in the Assembly in relation to individual cases. We believe consultation between the two should not be limited to matters for which the Attorney General is accountable to the Assembly.
Recommendation 49 - Giving of reasons
The emasculation of this key recommendation is completely unacceptable. The practice of the DPP in NI to refuse to give reasons in controversial cases has been one of the key factors in undermining public confidence in the criminal justice system. We provided the Review with detailed case studies in the Finucane murder, the Hamill murder, the murder of Nora McCabe and others which suggested that the reluctance to give reasons had little to do with concerns about possible injustice to an individual but was more about protecting the interests and reputation of the agencies of the state. The recommendation of the Review was balanced and positive and argued that the balance should shift towards the giving of reasons but accepted that there may be instances where this was not possible because it could conflict with the interests of justice. Essentially the government response is a refusal to accept this recommendation. Nothing is proposed to implement the shift towards giving reasons which the Review recommended.
Not only does this go against the recommendations of the Review but it also potentially violates the Human Rights Act. As a result of Kelly et al v United Kingdom (4^th May 2001) the prosecution service will be obliged to give reasons in cases which involve suspicious or controversial deaths.
Recommendation 56 - Complaints procedure
This recommendation suggested an independent element in any complaints procedure. To say, as the government response does, that this already exists because complaints are examined by a member of staff other than the person whose actions have given rise to the complaint, is risible. Complaints should be investigated by an agency outside the prosecution service.
Recommendation 62 - Recruitment
This has already begun despite the fact that this Plan has yet to be published. The hope of the Review was clearly that in the aftermath of the establishment of a new prosecution service, applications would be received from those traditionally under-represented in the office. This is unlikely if the recruitment occurs now.
The judiciary
Most of the recommendations in this section suffer from the fact that they are dependant on the devolution of criminal justice functions. CAJ believe that Northern Ireland cannot await devolution of these functions at some unspecified future date in order to make progress towards a more accountable bench which will command more widespread public confidence.
Recommendation 67 - Judicial Independence
While the Review recommended explicit reference to the independence of the judiciary in Westminster legislation, they did not call for the use of the word "continued". Given the controversy there has been in relation to alleged instances of judicial bias, the inclusion of this word is gratuitous.
We also believe the legislation should place an obligation on the judiciary themselves to dispense justice independently.
Recommendation 68 - Merit Principle
The response to this recommendation fails to reflect the discussion which the Review engaged in on the competencies included in the merit principle. It is noteworthy that all of these recommendations in relation to eligibility continually emphasise the government's delight that the Review affirmed the merit principle. The Plan should articulate those competencies which the Review identified as making up merit and these should be reflected either in the Bill or relevant Codes of Practice for the Judicial Appointments Commission and indeed those others involved in the appointment of the more senior bench.
Recommendations 69, 89-92 - Judiciary to be reflective of society
The two key principles underpinning confidence in the judiciary are independence and representativeness. Given that there is statutory provision in relation to independence, we cannot understand why there is no obligation in the legislation to ensure that the bench is representative of society. Similar clauses have been included in legislation governing the Human Rights Commission, the Police Board and the Parades Commission. While of course the outworking of such clauses has rarely been successful, at least it should provide parameters of fairness for the appointments process.
Once again no timescale is included by which the recommendations in relation to representativeness will be complied with. While this is a general problem with the plan, it is a particular problem with recommendations which go to the heart of establishing a representative judiciary and thus confidence in the criminal justice system. Why can the NIO not give a timescale for establishing a database of qualified candidates or having discussions with the Bar Council and Law Society along with the Equality Commission?
Recommendations 77-80 - Judicial appointments
We believe Northern Ireland should not have to wait for devolution for the establishment of a Judicial Appointments Commission.
We believe lay membership of the Commission should at least equal legal membership. Otherwise it is very likely that the representatives of the judiciary and the profession will dominate the discussions. This is particularly so given that the chair is going to be the Lord Chief Justice (LCJ). In addition the Review envisaged that there would be five judicial members, two from the professions and four or five lay members. Under section 12 of the Bill, there would in fact be six judicial members. This is tipping the balance even further in favour of the judicial representation.
In addition the Review indicated that the LCJ should consult with each tier of the judiciary before appointing the relevant representatives. We cannot find any provision in the Bill for such consultation to take place. If the proposals go through as they stand, we believe this process will be completely dominated by the Lord Chief Justice.
We do not understand why the lay members should be representative of the community in Northern Ireland but the there is no similar obligation in relation to the judicial or legal appointments. At the very least there should be a statutory obligation that the Judicial Appointments Commission as a whole should be representative of society.
Recommendation 75, 85 - Appointment of Lord Chief Justice and Lord Justices of Appeal
We are aware the Review recommended that the appointment of the most senior judges should be not be done through the Judicial Appointments Commission as with the other judicial appointments but should continue to be made on the recommendation of the Prime Minister. We do not understand why this should be the case. CAJ believes that all appointments to the bench in Northern Ireland should be made by the Judicial Appointments Commission.
Recommendations 81, 82, 83, 84 and 107 - Judicial Appointments Commission
As indicated above, we believe that the Judicial Appointments Commission should be able to make appointments rather than just offer advice in relation to all judicial appointments including the most senior. If not, the process remains wide open to the criticism that it is politically biased.
In response to recommendation 84, the Bill does not make clear that the First and Deputy First Minister would be bound by the second recommendation of the Judicial Appointments Commission, where they had asked them to reconsider the first recommendation.
Once again the response to 107, in relation to drawing up a code of ethics for the Judicial Appointments Commission, leaves everything to the agency involved which is as yet not even established.
Recommendations 86, 87, 88 and 94 - Judicial Appointments Unit
The Review recommended the establishment of a Judicial Appointments Unit "separate from the Court Service . but staffed by official drawn from it." The government response does not appear to suggest that there will be any distance between this Unit and the Court Service. Indeed it appears the Unit is already functioning within the Court Service.
Recommendation 95 - Appointment of judicial appointments commissioner
It is once again of concern that the government have gone ahead and recruited this person without waiting even for publication of this Plan.
Recommendation 96 - Oath
The purpose of this recommendation was clearly to neutralise the oath which members of the judiciary have to take on appointment. In these circumstance we believe the word "realm" should be replaced with the word "jurisdiction".
Recommendations 97-102 - Judicial Training
The Review recommended that induction training should be mandatory. While the government says it accepts all of these recommendations, there is no mention in the Bill of the requirement for mandatory training. We also believe that training for all judges should be mandatory. The Bill should make this clear.
Recommendation 103 - Tenure
We made the case to the Review that the statutory retirement age for judges in future should be 65. We remain of the view that this should be the case.
Recommendations 104-106 - Complaints
We believe the response to the recommendations in relation to complaints is inadequate. It is clear that the Review recognised there was a problem in relation to judicial accountability and made limited recommendations in order to remedy this. However, the relevant provisions in the Bill qualify the official acceptance to such an extent, that it is unlikely they will satisfy even the most modest concern about whether the judiciary are held properly to account.
The tribunals which are envisaged in the Bill can not in any sense be described as independent. Two of the three members will be appointed by either the Lord Chancellor or the Lord Chief Justice and will be current or retired judges. The third member of the tribunal will be appointed by the First and Deputy First Minister and will be a lay person. That person cannot be chair of the tribunal. Even in the unlikely event that such a tribunal recommends the removal or suspension of a judge, the Bill prevents the removal or suspension without the agreement of the Lord Chief Justice. The Review made no reference to giving this power of veto to the Lord Chief Justice.
The Lord Chief Justice is also given sole responsibility for devising the codes of practice relating to the handling of complaints against the judiciary.
Given the unfortunate history in Northern Ireland of institutions such as the police being allowed to investigate their own wrongdoings, it is strange that the government has chosen largely to replicate such a system in relation to the judiciary.
Courts
Recommendation 123 - Inquests
The review established in relation to inquests is insufficient to meet the concerns expressed by the Review team. Indeed when it was initially mooted by the Home Office, its terms of reference did not cover Northern Ireland. Although Northern Ireland is now included, nevertheless the terms of reference for the review are very technical and cover matters such as the issuing of death certificates. This will not deal with the situation in relation to inquests in Northern Ireland. The Review said that it recognised "serious concerns about the way the [inquest] system" was operating.
It is also relevant that in the wake of the decisions of the European Court of Human Rights in Jordan, Kelly, Shanaghan and McKerr the Lord Chancellor's Department have informed Belfast Coroners Court that there is an ongoing internal consultation within government about how to respond to the judgements. This consultation is expected to conclude in January and will have to result in serious changes to the inquest system in order to comply with the judgements.
However, the European judgements provide the baseline for the reform of the inquest system. Any review must be tasked with changing the system in order to comply with those judgements and other relevant international human rights standards.
Recommendations 124 - 128 - Public outreach and information
While the government says these recommendations endorse existing practices and policies, CAJ has seen little evidence of this and we would be more aware of such steps than most. Crucially, yet again there is no timetable.
Recommendation 135 - Simplification of dress
Unusually the Plan indicates that this recommendation is not wholeheartedly accepted. This may be because the implementation of this recommendation is essentially left to the judiciary and the legal professions. This is unacceptable because it is highly unlikely that the judiciary or the professions will implement the recommendation. There is also no timetable for implementation.
Provision to simplify dress in court should be included in the Bill.
Recommendation 141 - Symbols
The rationale of the proposals for change inside the courtroom was the necessity of creating "an environment in which all those attending court can feel comfortable." We believe that by retaining symbols on the outside of courthouses and allowing the continued flying of the Union flag, the Review will not achieve the desired environment. This is particularly so when one considers that the Review also refused to make recommendations in relation to the name of the Royal Courts of Justice and the Crown Court, or the term Queens Counsel. This reticence on the part of the Review is made all the more difficult to understand by the comment that "[I]n time it may be more fitting to move towards symbols that emphasise the separation of the courts from the executive." In our view the appropriate time for such symbolic separation is now in the aftermath of the Agreement. We believe making such changes in the context of a mechanism, which received widespread support from the electorate, has more legitimacy and will be less divisive than if such changes are left to court action or unilateral action on the part of the government.
In addition while the Review recommended that the interior of courtrooms be free of any symbols, the relevant provision of the Bill only outlaws the Royal Arms from the interior or courthouses. Other symbols will not be affected.
The Bill of course allows the Royal Arms to remain in place on the exterior of a court house if it was there immediately before the coming into force of the relevant section. We have therefore been very concerned to learn that it is proposed that the Royal Arms be placed on the exterior of the new court house in Belfast just before the Bill comes into in force, thereby technically avoiding falling foul of its provisions. Given that this new court house will be the primary court house in Northern Ireland in terms of public usage and prestige, this decision can only be viewed as highly unfortunate.

COMMITTEE ON THE ADMINISTRATION OF JUSTICE
4 January 2002

the law society of northern ireland
Written submission

There are two points arising from our previous presentation on which we may be able to provide some further assistance as the response of the Assembly to the Secretary of State is considered by the Committee.
The first point is, in a sense, the most significant at this stage because the Bill provides a unique and valuable opportunity to deal with constitutional principles which will underpin the future administration of justice in Northern Ireland.
The importance of this is illustrated by the extent to which the Bill does deal already with core constitutional principles. We refer in particular to Clause 1 of the Bill which provides an in-principle statutory guarantee of judicial independence, in these terms:
"Those with responsibility for the administration of justice must uphold the continued independence of the judiciary".
A similar provision on independence appears at Clause 38(1), dealing with the Director of Public Prosecutions, which provides in these terms: "Those with responsibility for the administration of the criminal justice system must uphold the independence of the Director".
In our submissions on the Criminal Justice Review the Law Society drew attention to a principle of equal importance which should be recognised in the particular context of Northern Ireland, primarily for the same reasons which have led to the conclusion that it is necessary in the Northern Ireland context and by way of this Bill to provide a statutory statement recognising the independence of the judiciary and the independence of the prosecutorial process. There is a compelling argument for providing the same kind of guarantee to preserve the independence of the legal profession.
We shall be developing this argument as necessary in greater detail in our dialogue with the Government and through the Parliamentary process to enact the Bill. The Committee may well be familiar with the main contention, and so I will draw attention at this stage only to the following considerations:
[a] The independence of the judicial process and the prosecution process is correctly seen in Northern Ireland as a key issue in relation to public confidence in the administration of justice. This is no less so in respect of the operation of barristers and solicitors, where the public must have confidence that the primary duty of their professional advisors lies in protecting the interests of the client represented, and that the primacy of that relationship will not be influenced or interfered with by political considerations or the agenda of the Government of the day. In a situation, such as Northern Ireland, where it is thought necessary to have a statutory statement and a guarantee of the independence of the judiciary, there is the same need in the same context to affirm the independence of the legal profession;

[b] As noted in our formal submission, the upholding and effective application of human rights standards and constitutional principles depends uniquely on the maintenance of, and access to, a genuinely independent legal profession. The importance of this principle is recognised internationally. The relevant international standards, and the special need for this principle to be understood and recognised in Northern Ireland was identified in the course of the Criminal Justice Review (see Section 3.45 - 3.56 of the Final Report) even though consideration of the independence of the legal profession was not included by the Government within the terms of reference of the CJR Team;

[c] It has always been well established as a general principle that, as part of or derived from the doctrine of the separation of powers, that the legal profession should be aligned with the independent judicial process. Thus, for example, supervisory arrangements for the legal profession lie primarily with the Lord Chief Justice. In the particular context of Northern Ireland, and for the same reasons of independence, it was accepted during the period of direct rule that responsibility for professional legal matters should lie with the Lord Chancellor (as the senior judge within the mainland constitutional settlement) rather than with the Secretary of State for Northern Ireland.
If the Committee agree that the principle should be recognised in a statutory form, then we would respectfully suggest, as we will be suggesting to the Government in due course, that a free-standing provision be included in the Bill on the following lines:
"Guarantee of continued independence of the legal profession

[ ] Those with responsibility for the administration of justice must uphold the continued independence of the legal profession".
We do not argue for any particular application of that principle to particular circumstances, but we do consider it to be of critical importance that those involved in the future administration of justice in Northern Ireland should be obliged to recognise the independence of members of this profession, whether barristers or solicitors, as policies are developed under the new constitutional arrangements. We would respectfully invite the Committee to consider supporting the Law Society's submission in this respect.
The second general point is perhaps self-evident, but may well be worth emphasising. It concerns the continuing need for involvement of local politicians and local agencies in the process of enactment and implementation. We are concerned that the Government should not regard the consultation process concluding on 7th January as the end of a process with no further opportunity for dialogue with those who can contribute to framing of the primary legislation, the secondary legislation which will be enacted in due course, and indeed the practical implications of the legislation in other respects.
We do not think at this stage that the process of continued dialogue need be formalised, but we will be asking the Government to ensure that following completion of the present consultation process, mechanisms are put in place to allow a regular high-level dialogue between the Government and the Law Society about: (a) matters raised in submissions by the Society and other consultees; (b) the contents and time-scale for the Bill, and secondary legislation prepared under the Bill; (c) the timing of implementation of the review recommendations and the enabling legislation.
This submission on this second point reflects the view of the Society that this process has major short, medium and long-term implications which will extend at least over the next two - three year period. It also reflects that the decisions which being made now, and to be reflected in the Justice (Northern Ireland) Bill in particular, are critical to maintaining public confidence in the future administration of justice in Northern Ireland.
I apologise that it has not been possible for the Law Society to provide more substantive input on points of detail at this stage within the limited resources and time available. I should be grateful if you could offer this letter to the Committee in terms of the two core recommendations set out above.

THE LAW SOCIETY OF NORTHERN IRELAND
December 2001

[Extract]

NORTHERN IRELAND HUMAN RIGHTS COMMISSION
Written submission

General matters

1. The Northern Ireland Human Rights Commission welcomes the fact that legislative proposals have at last been published for the reform of the criminal justice system in Northern Ireland. The comments which follow are the Commission's preliminary views on the draft Bill. The Commission has not yet had the opportunity to study the Bill in depth and it therefore wishes to reserve its final position on matters connected with the Bill.

2. The Commission welcomed the publication of the Report of the Criminal Justice Review in March 2000. We issued a 43-page response to the Report, largely endorsing what was proposed. In particular we applauded the centrality given to the protection of human rights in the Report. In September 2000 the Commission hosted a conference in Armagh on the main recommendations. The event helped the Commission make up its mind on what rights connected with criminal justice should be contained in its proposed Bill of Rights for Northern Ireland, a document which we published in September 2001 and which is currently the subject of extensive public consultation.

3. The Commission is disappointed that the Justice (Northern Ireland) Bill does not put human rights at the centre of the reforms in the way in which the Review recommended. The first 16 recommendations of the Review, all on human rights, have not been reflected in the Bill at all, as a glance at the Index (on page 151) of the Implementation Plan makes clear. The Plan states in relation to almost all of these recommendations that their implementation is "ongoing" but in nearly every instance provides no timetable. At several other points in the Bill the opportunity has been missed to include references to relevant international standards on human rights (conveniently compiled by Livingstone and Doak in Research Report No.14 published by the Criminal Justice Review).

4. Substantial parts of the Bill are stated to be dependent upon devolution of the responsibility for criminal justice to the Northern Ireland Assembly. The Commission believes that in general terms this is not necessary. If changes are required in order to make the criminal justice system more human rights-compliant, these should occur as soon as possible regardless of which Parliament has responsibility for the matter.

5. Perhaps the most glaring omission in the early part of the Bill is the failure to include any statement of the aims of the criminal justice system. While the Review did not actually recommend that these aims be contained in the legislation, we see no good reason why they should not be. The Police (Northern Ireland) Act 2000 already contains a section stating the functions of the Police Service, and clause 49 of the Bill sets out the aims of the youth justice system (although the Commission does not agree with the way in which they have been formulated). We propose that the Bill be amended to set out clearly the aims of the criminal justice system. One of these aims should be the promoting and protecting of human rights.

6. The Commission would like to see someone appointed to serve as an "Oversight Commissioner" for the implementation of the criminal justice reforms, in the same way as Mr Tom Constantine operates in relation to the Patten Report on policing. In its recommendation no. 95, the Review envisaged the appointment of some such person in the specific context of appointments to judicial posts.

Part 1 of the Bill

7. Clause 1 of the Bill asserts that those with responsibility for the administration of justice must uphold the continued independence of the judiciary. The Commission believes that the Bill should state unambiguously that one of the aims of the criminal justice system is the maintenance of the independence of the judiciary from the executive, the legislature and any other organisation. We would wish to see reference made to provisions in the UN's Basic Principles on the Independence of the Judiciary (1985). Principle 2, for example, would be worth including in full:

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

8. As regards appointments to the proposed Northern Ireland Judicial Appointments Commission, we would prefer these to be made after there has been a properly advertised and rigorously objective selection system put in place. This would apply in particular to the five lay members who are to be appointed by the First Minister and deputy First Minister. We believe the so-called Nolan principles on appointments to public offices should apply, but that the principle of representativeness should be applied also.

9. As regards the appointment of the Lord Chief Justice, we think the proposals contained in clause 4 (inserting a new section 12 into the Judicature (Northern Ireland) Act 1978) are too cumbersome and convoluted. We do not see why the Judicial Appointments Commission should not be responsible for recommending to Her Majesty whom to appoint. If there is a danger of members of the Judicial Appointments Commission themselves being candidates for the position, they can be disqualified from sitting on the Commission when it is considering its recommendation.

10. We believe that the Judicial Appointments Commission - not the Lord Chancellor as proposed in the Bill - should also be responsible for appointing lay magistrates.

11. Clause 8 provides for tribunals to be established to consider the removal of judges. The Commission believes that there should be greater involvement by non-serving judges on this tribunal.

12. Clause 9 provides for tribunals to "provide advice about any steps which should be taken to deal with" complaints against judges. It is not clear who would be entitled to sit on such a tribunal. The Commission would prefer a more definite and independent method for dealing with such complaints. Principles 17 to 20 of the UN's Basic Principles on the Independence of the Judiciary (1985) should be applied here. We would prefer someone other than the Lord Chief Justice to be responsible for preparing a code of practice relating to the handling of complaints against judges.

13. Clause 16, on the judicial oath, refers to "the laws and usages of this realm". Strictly speaking Northern Ireland is not itself a realm but is part of a realm, with different laws and usages from those in other parts.

14. The Bill does not seem to require initial or in-service training for the judiciary. We think that this is a serious gap in the legislation. We would wish the Judicial Studies Board to be placed on a statutory footing.

Part 2 of the Bill

15. As regards the proposed new prosecution system, the Bill again omits to state the objectives of the system. Recommendation 41 of the Review, for example, said that outreach to the community should be a stated objective of the Prosecution Service, but this is not mentioned in the Bill.

16. The Review recommended (No. 28) that limits should be placed on the publication of the fact of an arrest and of the name of the arrested person. The Implementation Plan, probably rightly in the Commission's view, rejects the imposition of limits on the publication of the fact of an arrest. But the Bill does not seem to place limits on the publication of the name of the arrested person.

17. The Review recommended (No. 40) that the Prosecution Service should engage with the community about diversionary schemes. The Bill does not seem to address this (see clause 54).

18. The Review recommended (No. 45) that there should be no power in the attorney General to direct the DPP. It is not clear from clause 37 that this recommendation is being entirely implemented.

19. The Review recommended (No. 46) that it should be an offence to seek to influence the prosecutor not to pursue a case. This does not seem to be implemented in the Bill.

20. The Review recommended (No. 49) that in certain situations the prosecutor should seek to give as full an explanation as possible as to why there has been no prosecution. This does not seem to be implemented in the Bill.

21. Clause 34 provides for a code of practice for prosecutors, and this must include a code of ethics laying down standards of conduct and practice. The Commission would like to see a requirement inserted in the legislation to the effect that the code of ethics must be based on the UN's Guidelines on the Role of Prosecutors (1990).

22. The Review recommended (No. 55) that details of complaints procedures doe the Prosecution Service should be publicly available in the annual report. This does not seem to be implemented in the Bill.

Part 3 of the Bill

23. The Review recommended (No. 263) that the proposed Inspector should be "responsible for advising Ministers on standards within the criminal justice agencies". But clause 43(7) merely says that the Secretary of State "may require" the Chief Inspector to provide "advice in relation to organisations in the criminal justice system".

24. Clause 42 does not specify which standards the Chief Inspector of Criminal Justice is to apply when conducting inspections. We recommend that he or she should be statutorily obliged to measure whatever he or she sees against the aims of the criminal justice system (e.g. those set out in recommendation no. 2 of the Review) as well as against internationally accepted human rights standards.

25. The Review recommended (No. 263) that the Inspectorate should publish its reports and make them widely and readily available. But clause 45(3) says that the Secretary of State can exclude part of a report from publication on grounds of national security, public order or the safety of any person.

26. The Review recommended (No. 245) that the proposed Northern Ireland Law Commission should have certain functions. Some of these (the powers to commission research and to invite suggestions for reform and to consult as widely as possible) have not been expressly included in clause 47. Moreover clause 47(2) subjects the work of the Law Commission to the approval or consent of the Secretary of State. This was not part of the Review's recommendations.

27. The Review recommended (No. 252) that in drawing up its programme of work the Law Commission should take account of the views of others through a consultation process. This is not implemented in the Bill.

Part 4 of the Bill

28. The Bill does not, to our disappointment, raise the age of criminal responsibility above 10. The Commission is proposing in its Bill of Rights that the age be raised to 12.

29. Clause 49 sets out aims of the youth justice system, but these are inadequate. They do not comply with the Review's recommendation, which states that the statement of principles should have due regard to the international rights standards to which the UK has given a commitment, e.g. the UN Convention on the Rights of the Child, the Beijing Rules and the Riyadh Guidelines. These are based around the principles of re-education, rehabilitation and the child's right to play a constructive rile in society.

30. Clause 49(3) says that all persons and bodies exercising functions in relation to the youth justice system in Northern Ireland must have regard to the welfare of children affected by the exercise of their functions, with a view to furthering their personal, social and educational development. This does not comply with Article 3(1) of the UN Convention on the Rights of the Child (1989), which says that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (emphasis added)

31. The Commission welcomes the definition of children in clause 49(6) as "persons who are under the age of 18". We particularly welcome the extension of the juvenile justice system to 17-year-olds (clause 59), although we continue to have concerns about 17-year-olds being held in a Young Offenders Centre. The power to send even 15-year-olds to a Young Offenders Centre should be repealed.

32. Clause 50 (reparation orders) and clause 51 (community responsibility orders): the Commission has not yet had the opportunity to study these in detail, but in principle we welcome the focus on reparation and the extension of community service orders to those under 16. We are concerned, however, about the training needs of those who are involved in supervising young people who are the subject of such orders. We feel this should be dealt with in the Bill. We are also aware that supervision of the new orders will need to be properly resourced in what is already a pressurised financial situation for social services. Who, for example, will provide the "relevant instruction in citizenship" required for community responsibility orders?

33. The report which is to be considered by the court before making a reparation order should have to include an analysis of the child's needs, including his or her psychological needs.

34. The Commission welcomes the fact that children aged 10 to 13 found guilty of an offence will not be held in juvenile justice centres, but we would prefer this goal to be achieved through the raising of the age of criminal responsibility.

35. As regards custody care orders (clause 52), we are concerned about the name of these orders, about the availability of secure beds, about the work that will be done with such children as regards their offending behaviour, about their lack of entitlement to the full protection of the Children (Northern Ireland) Order 1989, and about the potential stigma attaching to children in care.

36. The Commission welcomes the principle of youth conferencing (clause 53) but we have still to study the provisions in detail.

Part 5 of the Bill

37. The Commission has still to reach a view on Clause 62 (Display of the Royal Arms at courts).

38. The Commission welcomes the proposal to require the Secretary of State to make a victim information scheme so that victims and certain others can be informed of a prisoner's impending release. We would urge careful consideration to be given to the need to protect the safety of ex-prisoners - this may be a reason for withholding information from some victims, as clause 63(8)(b) recognises.

39. The Commission welcomes in principle clause 64, which obliges the Secretary of State to have regard to the views of victims on the temporary release of prisoners. The Commission would prefer if this duty was accompanied by another, namely to assess the victim's perception of a possible threat against other information which is available. The prisoner should also be informed of, and be able to make representations about, any information presented against him or her.

40. Clause 66 requires the Secretary of State to devise and publish a strategy for enhancing community safety. This Commission would like to see the list of statutory consultees considerably extended, as recommended by the Review (No. 193).

41. Clause 67 should require, rather than just permit, the Secretary of State to establish local community safety partnerships. It should also contain a requirement that the partnerships be broadly representative of the local community (bearing in mind the requirements of section 75 of the Northern Ireland Act 1998).

42. Clauses 68 and 69: While the Commission welcomes the fact that the current ex gratia scheme for granting financial assistance at inquests is to be put on a statutory footing, we believe that there should be a right to funding in all such cases (subject to financial eligibility tests). This would help to ensure compliance with Article 2 of the European Convention on Human Rights.

43. Clause 72 permits searches to be conducted by court security officers. We believe that such searches should not be permitted of legally privileged documents unless there are safeguards inserted to ensure that the confidentiality of those documents is maintained.

NORTHERN IRELAND HUMAN RIGHTS COMMISSION
29 November 2001

NORTHERN IRELAND HUMAN RIGHTS COMMISSION
Supplementary submission

General matters

The Northern Ireland Human Rights Commission welcomes the fact that legislative proposals have at last been published for the reform of the criminal justice system in Northern Ireland. The Commission hopes that the comments made in this initial paper will be carefully considered by Ministers and officials responsible for piloting the Bill through Parliament. We hope to monitor the Bill's passage and to produce supplementary papers as and when necessary. In the present submission the Commission focuses on Part 4 of the Bill - Youth Justice.

1. The Commission also welcomed the publication of the Report of the Criminal Justice Review in March 2000. We issued a 43-page response to that Report, largely endorsing what was proposed. In particular we applauded the centrality given to the protection of human rights in the Report. In September 2000 the Commission hosted a conference in Armagh on the main recommendations. The event helped the Commission make up its mind on what rights connected with criminal justice should be contained in its proposed Bill of Rights for Northern Ireland, a document which we published in September 2001 and which is currently the subject of extensive public consultation. One chapter of that consultation document is devoted to criminal justice issues; our recommendations relating thereto are reproduced in the Appendix to this submission.

2. The Commission is disappointed that the Justice (Northern Ireland) Bill does not put human rights at the centre of the reforms in the way in which the Review recommended. The first 16 recommendations of the Review, all on human rights, have not been reflected in the Bill at all, as a glance at the Index (on page 151) of the Implementation Plan makes clear. The Plan states in relation to almost all of these recommendations that their implementation is "ongoing" but in nearly every instance provides no timetable, however imprecise. At several other points in the Bill the opportunity has been missed to include references to relevant international standards on human rights (conveniently compiled by Livingstone and Doak in Research Report No.14 published by the Criminal Justice Review).

3. Substantial parts of the Bill are stated to be dependent upon devolution of the responsibility for criminal justice to the Northern Ireland Assembly. The Commission believes that in general terms this is not necessary. If changes are required in order to make the criminal justice system more human rights-compliant, these should occur as soon as possible regardless of which Parliament has responsibility for the matter.

4. Perhaps the most glaring omission in the early part of the Bill is the failure to include any statement of the aims of the criminal justice system. While the Review did not actually recommend that these aims be contained in the legislation, the Commission sees no good reason why they should not be. The Police (Northern Ireland) Act 2000 already contains a section stating the functions of the Police Service, and clause 49 of the Bill sets out the aims of the youth justice system (although the Commission does not agree with the way in which they have been formulated - see para. 30 below). We propose that the Bill be amended to set out clearly the aims of adult the criminal justice system. One of these aims should be the promoting and protecting of human rights.

5. The Commission would like to see someone appointed to serve as an "Oversight Commissioner" for the implementation of the criminal justice reforms, in the same way as Mr Tom Constantine operates in relation to the Patten Report on policing. In its recommendation no. 95, the Review envisaged the appointment of some such person in the specific context of appointments to judicial posts. We feel that this proposal should be generalised, or at any rate duplicated in relation to reforms of the judicial and prosecution systems

Part 1 of the Bill: The Judiciary

6. Clause 1 of the Bill asserts that those with responsibility for the administration of justice must uphold the continued independence of the judiciary. The Commission believes that the Bill should state unambiguously that one of the aims of the criminal justice system is the maintenance of the independence of the judiciary from the executive, the legislature and any other organisation. We would wish to see reference made to provisions in the UN's Basic Principles on the Independence of the Judiciary (1985). Principle 2, for example, would be worth including in full:

As regards appointments to the proposed Northern Ireland Judicial Appointments Commission (clause 3), we would prefer these to be made after there has been a properly advertised and rigorously objective selection system put in place. This would apply in particular to the five lay members who are to be appointed by the First Minister and deputy First Minister. We believe the so-called Nolan principles on appointments to public offices should apply, but that the principle of representativeness should be applied also. We think that, broadly speaking, the composition of the judiciary in Northern Ireland should reflect the composition of society in Northern Ireland.

7. As regards the appointment of the Lord Chief Justice, we think the proposals contained in clause 4 (inserting a new section 12 into the Judicature (Northern Ireland) Act 1978) are too cumbersome and convoluted. We do not see why the Judicial Appointments Commission should not be responsible for recommending to Her Majesty whom to appoint. If there is a danger of members of the Judicial Appointments Commission themselves being candidates for the position, they can be disqualified from sitting on the Commission when it is considering its recommendation.

8. Clause 8 provides for tribunals to be established to consider the removal of judges. The Commission believes that there should be greater involvement by non-serving judges on this tribunal. Non-serving judges should be in the majority on the tribunal. Clause 8(4)(b) should therefore be amended by deleting the words "or, is" in line 1.

9. Clause 9 provides for tribunals to "provide advice about any steps which should be taken to deal with" complaints against judges. It is not clear who would be entitled to sit on such a tribunal. The Commission would prefer a more definite and independent method for dealing with such complaints. Principles 17 to 20 of the UN's Basic Principles on the Independence of the Judiciary (1985) should be applied here. We would prefer someone other than the Lord Chief Justice to be responsible for preparing a code of practice relating to the handling of complaints against judges.

10. We believe that the Judicial Appointments Commission - not the Lord Chancellor as proposed in clause 12 of the Bill - should be responsible for appointing lay magistrates.

11. Clause 16, on the judicial oath, refers to "the laws and usages of this realm". Strictly speaking Northern Ireland is not itself a realm but is part of a realm, with different laws and usages from those in other parts. The word "jurisdiction" would be a more accurate description in law of the legal system in question.

12. The Bill does not seem to require initial or in-service training for the judiciary. We think that this is a serious gap in the legislation. We would wish the Judicial Studies Board to be placed on a statutory footing and for its functions to be set out clearly. The Board should be required by law to produce an Annual Report.

Part 2 of the Bill: Law Officers and Public Prosecution Service

13. As regards the proposed new prosecution system, the Bill again omits to state the objectives of the system. Recommendation no. 41 of the Review, for example, said that outreach to the community should be a stated objective of the Prosecution Service, but this is not mentioned in the Bill.

14. The Review recommended (no. 28) that limits should be placed on the publication of the fact of an arrest and of the name of the arrested person. The Implementation Plan, probably rightly in the Commission's view, rejects the imposition of limits on the publication of the fact of an arrest. But the Bill does not seem to place limits on the publication of the name of the arrested person.

15. The Review recommended (no. 40) that the Prosecution Service should engage with the community about diversionary schemes. The Bill does not seem to address this (see clause 54).

16. The Review recommended (no. 45) that there should be no power in the Attorney General to direct the DPP. It is not clear from clause 37 that this recommendation is being entirely implemented.

17. The Review recommended (no. 46) that it should be an offence to seek to influence the prosecutor not to pursue a case. This does not seem to be implemented in the Bill. Whatever the difficulties in phrasing such an offence, an attempt to do so needs to be made. The existing law on contempt of court may provide one or more useful models to follow.

18. The Review recommended (no. 49) that in certain situations the prosecutor should seek to give as full an explanation as possible as to why there has been no prosecution. This does not seem to be implemented in the Bill. The Human Rights Commission has already been involved in litigation on this issue. It feels that the state of the current law (after the Court of Appeal's decision in Ex parte Adams, 2000) is deeply unsatisfactory.

19. Clause 34 provides for a code of practice for prosecutors, and this must include a code of ethics laying down standards of conduct and practice. The Commission would like to see a requirement inserted in the legislation to the effect that the code of ethics must be based on the UN's Guidelines on the Role of Prosecutors (1990).

20. The Review recommended (no. 55) that details of complaints procedures doe the Prosecution Service should be publicly available in the annual report. This does not seem to be implemented in the Bill.

Part 3 of the Bill: Other New Institutions

21. The Review recommended (no. 263) that the proposed Inspector of Criminal Justice should be "responsible for advising Ministers on standards within the criminal justice agencies". But clause 43(7) merely says that the Secretary of State "may require" the Chief Inspector to provide "advice in relation to organisations in the criminal justice system".

22. Clause 42 does not specify which standards the Chief Inspector of Criminal Justice is to apply when conducting inspections. We recommend that he or she should be statutorily obliged to measure whatever he or she sees against the aims of the criminal justice system (e.g. those set out in recommendation no. 2 of the Review) as well as against internationally accepted human rights standards.

23. The Review recommended (no. 263) that the Inspectorate should publish its reports and make them widely and readily available. But clause 45(3) says that the Secretary of State can exclude part of a report from publication on grounds of national security, public order or the safety of any person.

24. The Review recommended (no. 245) that the proposed Northern Ireland Law Commission should have certain functions. Some of these (the powers to commission research and to invite suggestions for reform and to consult as widely as possible) have not been expressly included in clause 47. Moreover clause 47(2) subjects the work of the Law Commission to the approval or consent of the Secretary of State. This was not part of the Review's recommendations.

25. The Review recommended (no. 252) that in drawing up its programme of work the Law Commission should take account of the views of others through a consultation process. This is not implemented in the Bill.

Part 4 of the Bill: Youth Justice

26. A general criticism of this Part of the Bill is that it is yet another legislative step which adds to a range of previous legislation in a piecemeal approach. Rather than supplying a fundamental redraft and consolidation of legislation in the new direction called for by the Criminal Justice Review, it provides for another cumbersome amendment to existing legislation.

27. The age of criminal responsibility

The Commission considers it unfortunate that the Government has not taken this opportunity to raise the age of criminal responsibility. Although this was not one of the Criminal Justice Review's recommendations, it would be in keeping with international standards such as the Beijing Rules and with the recommendations of the UN Committee on the Rights of the Child (1995). It would also help deal with some of the practical difficulties of the Bill outlined below.

28. Clause 49(1) and (2): Aims of youth justice system

The establishment of a set of aims for the youth justice system is welcomed as there has been a need for a clear set of guiding principles to inform all those working with children at risk of offending, from the police, probation and social services, to those working in the juvenile justice centres and delivering services to children. However the lack of any reference to human rights instruments, as recommended by the Criminal Justice Review (recommendation no. 169) is a serious oversight. Such instruments should be used as guiding principles for the operation of the youth justice system. The Commission suggests the following wording based on the UN Convention on the Rights of the Child (UNCRC), Article 40:

(1) The principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and the child's assuming a constructive role in society.

(2) Every child in contact with the law shall be treated in a manner consistent with the promotion of the child's sense of dignity and worth, reinforcing the child's respect for the human rights and fundamental freedoms of others.

Protection of the public from offending flows from the aims of prevention, rehabilitation and reintegration. In the Commission's view this does not, therefore, need to be a stated aim of the system.

The Commission considers that it is important that other principles contained in international human rights standards be included in the Bill. Amongst these are the principle of non-discrimination (Article 2 of the UNCRC) and the principle that custody should be used only as a last resort (Article 37 of the UNCRC). The Commission holds that, certainly where children are involved, society should use the least restrictive intervention(s) necessary to achieve the desired outcome. Any intervention or sentence should never be more harsh or demanding that that which could normally be imposed by the courts. This is an especially important principle in any system that takes on a restorative approach to justice.

29. The Commission is disappointed that the "best interests" principle (required by Article 3 of the UNCRC) has not been incorporated into clause 49(3) of the Bill in preference to the lesser test of regard for the child's welfare. This is in clear breach of international human rights standards.

30. The Commission welcomes the definition of children in clause 49(6) as all persons under 18.

31. New court orders

In general the Commission welcomes the emphasis on diversion from prosecution and on restoration and reparation.

32. Clause 50: Reparation orders

This new sentence is well set out and clear in purpose. It allows the court to order the child to make reparation for his or her offence, to the victim or to the community at large. The reparation order has a clear set of safeguards, particularly in relation to the nature and seriousness of the offence that warrants this community order. It requires the court to have regard to Article 8(1) of the Criminal Justice (Northern Ireland) Order 1996 (restrictions on imposing community sentences) and the consent of the offender. The order is also limited to a maximum of 24 hours' reparation within 6 months of sentence.

However, while welcoming the new order the Commission has several reservations. The order applies to 10 to 17-year-olds inclusive. This is of concern, especially for very young children (10-14 years), as it involves them in a community-based sentence. Such interventions and activities would have to be appropriate to the relative immaturity and needs of these very young children. This concern would best be dealt with by raising the age of criminal responsibility.

The order lacks clarity in relation to who will provide reports to the courts and who will supervise these children. In particular there is no mention of the skills or training requirements of those supervising the reparation orders.

The written report on a child should include an assessment of the child's needs, including psychological and educational needs (proposed article 36A(5)). In line with international human rights standards (Article 12 of the UNCRC), it should also include the child's views on any proposals.

The Commission welcomes the requirement on the court to explain the Order to the child in ordinary language (proposed article 36B(5)). In light of V v UK and T v UK [2000] 30 EHRR 121, the requirement to ensure that children understand what is happening to them should run through the whole of the youth justice system. The Commission recommends that the principle laid down in this provision should be stated in clause 49 as a requirement for the entire youth justice system.

The Commission recommends that the proposed article 36C(5) be amended to read the Secretary of State "shall" make rules, rather than "may".

The Commission notes that the Criminal Justice Review stated the need to pilot and evaluate reparation orders. The Commission supports this recommendation.

33. Clause 51: Community responsibility orders

This new sentence is available only for children who commit an offence punishable by imprisonment and requires the offender to attend a place specified in the order for relevant instructions in citizenship and to carry out practical activities in light of that instruction for between 20 and 40 hours. Like the reparation order the community responsibility order has a clear set of safeguards and requires the court to have regard to Article 8(1) of the Criminal Justice (Northern Ireland) Order 1996 (restrictions on imposing community sentences) and the consent of the offender.

The order applies to 10 - 17-year-olds inclusive. However, again, this type of order may be inappropriate for very young children (especially those aged 10 to 14 years), due to their relative immaturity. The Commission considers that such young children should be excluded from this form of community sentence, as they are unlikely to be able to participate with the order in any meaningful way and as it is not desirable to mix such young children together with older children when serving a sentence. This could best be achieved by raising the age of criminal responsibility.

The concept of "citizenship" (proposed article 36E(2)) should be interpreted bearing in mind the diversity of society in Northern Ireland. Citizenship includes rights as well as responsibilities and this should be reflected in the proposed article 36E(3)(a).

As regards the proposed article 36H, the Commission again recommends that this should read the Secretary of State "shall" make rules.

34. Clause 52: Custody care orders

This order deals with 10 - 13-year-olds inclusive, who would normally be dealt with by juvenile justice centre orders, and requires that such children when sentenced be held in secure accommodation by the "appropriate authority" (the DHSS). The order uses the same procedures and process as the juvenile justice centre order and has protections and limitations regarding the imposition of such orders in relation to the offence and its seriousness, as set out in the Criminal Justice (NI) Order 1996.

The Commission fully supports the recommendation of the Criminal Justice Review that 10 -13-year-olds found guilty of offences should not be held in juvenile justice centres (recommendation no. 170). However, the Commission has serious misgivings about the proposed custody care orders.

Given the very young age of these children, further restrictions need to be placed on the imposition of such orders, beyond those in the Criminal Justice (NI) Order 1996. The Commission recommends that such orders should be used only as a last resort, after all other community and financial penalties have been considered, and that they should be used only where the child poses a significant threat to the protection of the public.

International law is clear that children should be detained only as a measure of last resort and for the shortest period of time (Article 37 of the UNCRC and Rules 1and 2 of the UN Rules for the Protection of Juveniles Deprived of their Liberty). It stipulates that deprivation of liberty shall not be imposed unless the young person has been adjudicated upon in respect of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response (Rule 17.1 (b) and (c) Beijing Rules). In the Commission's view all legislation relating to the detention of children in Northern Ireland should be revised to comply with these principles.

The custody care order raises a number of other concerns. Because the children in question are so young, and because they are to be accommodated by the DHSS, they should be afforded all of the same provisions as children held in care under the Children (Northern Ireland) Order 1995. In particular, they should be given the same protections and resources to address their educational, social, physical and emotional needs. The care system will need to be provided with additional funding to ensure that this happens.

It is proposed in the Bill that children held under custody care orders should be held under a different regime from that applying when children are held under care orders. This is unacceptable because it is a breach of children's human rights that if held under custody care orders they are excluded from the full protection of the Children (Northern Ireland) Order, including the best interests article (article 3). This has serious implications not only for children themselves but also for those working with them, who will be expected to depart from existing best practice.

Furthermore, in view of the different regimes, it is likely that children given custody care orders will be held separately from other children in care. Because the numbers of children being given custody care orders will be tiny, they will effectively be held in isolation, which is a clear breach of their human rights. There will obviously be difficulties in providing places: the importance of family contact, however, is especially relevant to such young and vulnerable individuals and there would therefore need to be a number of regionally dispersed small units to facilitate such contact.

The alternative, to mix children in care and custody, also has dangers. Since the Black Report (1979), and with the knowledge that now exists of the failings of the training school system, there is a clear recognition that children in care should not be held in the same institutions as children sentenced for offending. If children in care and custody are mixed there will be a clear stigma attached to those in care for reasons other than offending. Indeed, the very title of the proposed new order is undesirable as it implies mixing children in care with those in custody.

Finally, the issue of remands in custody is not addressed in the proposed legislation. In particular, use of the provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 has resulted in persons under 14 years being held overnight in Lisnevin Juvenile Justice Centre. Government needs to address this problem.

In summary, the Human Rights Commission recommends that the best way to deal with the issue of very young children in the criminal justice system is to raise the age of criminal responsibility. Additionally, the Commission recommends that all children detained by the state should be given the full protections afforded by the Children (NI) Order, particularly article 3, which enshrines the best interests principle.

35. Clause 53: Youth conferences

The Commission welcomes the introduction of youth conferences and a restorative approach to youth justice. This will have profound implications in relation to the operation of youth justice in Northern Ireland. Given the importance and newness of this approach the Commission would welcome further consultation by Government with those who will be involved in working with the proposed measures.

The Commission has nevertheless some serious concerns regarding the practical operation of youth conferences. In relation to the proposed plans, which will form the basis of diversionary youth conferences as well as court-ordered youth conferences, our concerns relate to fairness, proportionality, the range of requirements that can be imposed, the nature, combination and severity of requirements, and the process of gaining consent.

The youth conference and plan are based around consent, particularly the consent and agreement of the child. This is in keeping with Article 12 of the UNCRC. However, this is by no means a straightforward issue, especially for a child, and is one of the reasons why in law children are not allowed to enter into financial contracts etc.

We know that children are easily influenced by adults, particularly adults in authority. Therefore, obtaining the consent of a child in a group situation (which the youth conference is), when the child has admitted the offence and the other participants are adults of authority - with the threat of court action should the child not agree - is obviously not a fair way of obtaining true and informed consent. Children could be willing to consent to arrangements in such situations which are not in their best interests. Children may be unaware of the possibility of acquittal and may fear appearing in court, making them more likely to consent and to waive their rights to a court hearing. Children may also be unaware that they could end up with harsher penalties following a conference than they would have been given if they had been dealt with through the courts.

Parents may be willing to consent to a conference plan in order to avoid court action, to have the matter dealt with quickly or to be seen to be in control of their children, and they too may be unaware of the likely outcome had the matter been dealt with in court.

For these reasons the consent of the child and participants in the youth conference is not in and of itself a sufficient safeguard that the rights of the child will be protected, particularly in relation to the imposition of harsh penalties. One of the consequences of the restorative conferencing system in New Zealand, upon which the proposed system for Northern Ireland is to be based, is that it can sometimes result in very onerous outcomes, considerably more harsh than a court would have imposed. This is undesirable, as it increases the probability that the child will be unable to complete the order. This not only fails the restorative process, it fails the child and the victim, and can lead to the child being brought back to court.

36. The proposed youth conference plans include a range of activities and actions which the child will be required to complete. The range is extensive and almost unfettered, except for some minor restrictions - such as the requirement that they should be completed within one year. Actions which the child may be required to undertake as a result of a conference plan and which cause concern include:

"make reparation for the offence to the victim.or community..": no limits are mentioned as to the nature or amount of reparation to be made;
"submit himself to the supervision of an adult": this does not state what any of that supervision may entail; the provision is completely vague and open-ended;
"perform unpaid work or services in or for the community" (if the child is has attained the age of 16): this too is open-ended and does not state the nature of the work, the amount or maximum number of hours the child will be expected to complete, or the types of services he or she could be required to perform;
"participate in activities...": again this does not state the amount or nature of activities, or the minimum or maximum number of hours of activities;
"submit himself to restrictions on his conduct or whereabouts (including remaining at a particular place for particular periods)": this in effect is a form of house arrest without limits - except that it can apply for a year.

It is a further cause of concern that all or any of these, and other requirements, may be placed on the child, and that they are couched in language that implies they are imposed to help the child (suggesting more may be better). In theory, therefore, a child who admits to an offence and agrees to a plan could be required to: apologise to the victim, complete an almost unlimited amount of unpaid work and reparation, be placed under the supervision of an adult, attend a whole range of activities, submit him- or herself for treatment and be placed under 24 hour house arrest for up to a year.

It is highly undesirable to give conferences such open powers when the courts themselves are restricted in the penalties they can impose. Youth conference plans should therefore have maximum limits and restrictions on how they can be combined in the order.

37. There are two types of youth conferences: diversionary and court-ordered conferences. In relation to diversionary conferences, the decision to refer the child to the conference may be made by the Director of Public Prosecutions, for any offence before court proceedings are commenced, if the child admits guilt and agrees to the conference. Following the conference and the plan which has to be agreed with the participants (including the police), the prosecutor has also to agree the plan. If the plan is rejected the prosecutor can restart court proceeding and the child can be prosecuted should he or she fail to complete the plan. We consider the logic of this decision-making to be flawed, as it opens the child to a process that does not serve the best interests of justice. This is due to the prosecutor's role in rejecting or accepting the plan: this does not address the interests of justice as his or her role is not independent (unlike the judiciary). He or she is by definition there to prosecute individuals. It follows that overly harsh and disproportionate plans may be acceptable to the prosecutor and imposed on the child.

More fundamentally, the range and severity of penalties agreed to in a diversionary plan are not linked to the severity of the offence and there is a lack of safeguards in place in relation to this, such as reference to those contained in the Criminal Justice (Northern Ireland) Order 1996. Despite the fact that a number of the options available to a conference are in effect community sentences and some affect the liberty of the individual, they may be imposed without reference to offence severity or the limitations imposed by the Criminal Justice (Northern Ireland) Order 1996.

Diversionary conferences with an agreed plan result in a criminal record, which may be cited in later criminal proceedings. This makes one wonder to what extent it represents real diversion, or whether it is simply diversion away from due process and proper judicial oversight

38. Court-ordered youth conferences are less problematic. They involve some form of judicial review of the process. This is a new form of court sentence for the court. However, the Commission is concerned about the prospect of a youth conference order being combined with a custodial order. This appears to be incompatible with the notion of restorative justice, which emphasises putting right the damage caused by the offence and reintegrating the offender back into his or her community. A custodial sentence does not represent reintegration in any form. Attempts to impose a custodial sentence with the consent of the individual, or getting a child to agree to lose his or her liberty, which is the most severe penalty available to the courts, would demonstrate the flawed notion of "agreement" and "consent" in this context.

39. Under the proposed articles 36J(3) and (4) for youth conference orders, we note that the court must be of the opinion that the offence was serious enough to warrant the conference, but no mention is made of the Criminal Justice (Northern Ireland) Order 1996 in arriving at that decision. Such minimum protections should be in place, especially when sentencing children.

40. The case has not been made as to why the conference co-ordinator has to be a civil servant, as proposed in the new article 3A of the Criminal Justice (Northern Ireland) Order 1998 (clause 53 of the Bill). More importantly, there is no mention of the skills a person needs to possess in order to fulfil such a role. Is the intention to exclude community-based restorative justice facilitators?

41. There is no mention of police-based restorative justice schemes in the Bill. Why are decisions made prior to prosecution not included?

42. The Commission welcomes clause 58, which provide for the inclusion of 17-year-olds within the remit of the youth court. However, the Commission is concerned that 17-year-olds can still be held in Young Offender Centres. This is in clear breach of international human rights standards, which state that children must be held separately from adults in detention. The Commission is of course also alarmed that 15 and 16-year-olds can still be detained in Young Offender Centres when they are considered by the court to be a danger to themselves. This is also in clear breach of human rights standards and should be repealed.

43. The Criminal Justice Review recommended that Lisnevin Juvenile Justice Centre was unsuitable for holding children and should be closed (recommendation no. 177). The Commission recommends that this should happen with urgency.

Part 5 of the Bill: Miscellaneous

44. It appears from clause 62(1) (prohibiting display of the Royal Arms inside the courtroom) that the intention is to "neutralise" the appearance of the courts. This would be in keeping with the removal of references to the monarch in the judicial oath or affirmation (clause 16) and with recommendation no. 142 of the Criminal Justice Review (and current Court Service policy) in relation to the declaration of "God Save The Queen". It is also consistent with the commitment to parity of esteem in the Belfast (Good Friday) Agreement and with the general principle that workspaces should be free of partisan displays.

More particularly, these changes are consistent with international standards:

The Universal Declaration of Human Rights asserts the rights to "equality before the law" and a hearing before an "independent and impartial tribunal". It ought to follow that court premises are so designed as to express the concepts of equality, independence and impartiality.
Those rights are restated in the UN's International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. They are reaffirmed in substantially identical terms in the European Convention on Human Rights and in other major regional and national instruments.
The UN Basic Principles on the Independence of the Judiciary (1985) affirm that "the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality".
The Principles further state that "The judiciary shall decide matters before them impartially.without any .improper influences.or interferences, direct or indirect, from any quarter or for any reason" and that "The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected." The latter passage is especially important in this context because it establishes that judicial independence is not merely a matter of the relationship between judges and the executive but also requires the business of the courts to be conducted in ways that ensure the equal treatment of, and demonstrate equal respect for, all persons before the law.

In this context, it is difficult to understand why recommendation no. 141 of the Criminal Justice Review and the subsequent sub-clauses of clause 62 should permit the display of controversial symbols (the Royal Arms and the Union flag) on or outside court-houses.

Recommendation no. 124 of the Criminal Justice Review included the statement that the courts should operate in a way that promotes confidence in the criminal justice system. It is clearly desirable that justice should be administered in circumstances which proclaim parity of esteem and inspire public confidence in equality of treatment. The system of civil and criminal justice in Northern Ireland must, in order to be effective, avoid endorsement of either of the main political identities. Courts are public buildings, and should be accessible to, and welcoming of, all members of the public.

At present the Commission is inclined to the view that it would be preferable that clause 62 should require, or as a minimum permit, the removal of all symbols which are not regarded as neutral. At the very least, the clause should explicitly permit the removal of signage that is not physically part of the fabric of the building, e.g. free-standing signs or detachable plaques rather than carved representations of the Arms.

45. Clause 63 substantially addresses recommendation no. 242 of the Criminal Justice Review in relation to information about the release of prisoners. It also seems to be in line with the Human Rights Commission's proposal for victims' rights in a Bill of Rights in that it adopts a broad definition of "victim". The Commission's proposed Bill of Rights does not specifically propose a right to information about prisoner release but there do not appear to be any human rights objections to such a provision. The safety point should be carefully interpreted so that where there is any reasonable prospect that the release of information could endanger someone (presumably, in most instances, the prisoner) it should be withheld.

The Bill does not address the other information rights for victims proposed in recommendations nos. 232-241 of the Criminal Justice Review. However the Implementation Plan indicates that these measures are being or will be implemented, and they do not appear to require legislation.

46. Clause 64 (Views on temporary release) appears to be an alternative approach to that proposed in the final part of recommendation no. 242 in the Criminal Justice Review. The Secretary of State should be obliged to assess the victim's perception of a possible threat against other information available and a victim should not be able to delay release unless there are reasonable grounds for believing that the threat is real. The prisoner should be informed of, and be given the opportunity to make representations about, any information presented against him or her.

47. Clause 66 (Community safety strategy) falls short of the inclusive approach outlined in recommendations nos. 192 and 193 of the Criminal Justice Review. The list of consultees should be considerably extended, either by listing specific agencies and NGOs relevant to the field, or by specifying a widespread public consultation. Additionally, or alternatively, there could be a regional body constituted on similar lines to the local community safety partnerships set up under the following clause. (The wording of clause 67 does not preclude the establishment of a regional partnership as well as local ones.) If such a body were constituted it, rather than the Secretary of State, could devise the regional strategy. It could take the form of the Community Safety Council proposed in recommendation no. 202 of the Review, and could also take responsibility for the Community Safety Unit referred to in recommendations nos. 197-201, 204 and 206 and responses thereto.

48. Clause 67 (Local community safety partnerships) departs in several important areas from the detail of recommendation no. 196 of the Review, particularly as regards the role of elected representatives. We note from the Explanatory Notes the intention that membership of the LCSPs should be drawn from a wide range of bodies, and the reasons why they are not specified in the clause, but clause 67(3) could at least state in general terms that the Secretary of State should ensure that each partnership includes elected representatives and persons drawn from relevant statutory agencies and voluntary and community organisations. Although this was not stated explicitly in recommendation no. 196, there should be a requirement, or even a mechanism, for ensuring that LCSPs are representative of the local community, broadly on the lines required by section 75 of the Northern Ireland Act 1998.

49. Clauses 68 and 69 (Exceptional legal aid and proceedings before a coroner) appear to be tidying-up measures to put on a statutory footing the ex gratia scheme already operating. The Commission would prefer the law to be that legal aid is available as of right at inquests to those who are otherwise financially eligible for it. While this is not necessarily required as a result of the judgements of the European Court of Human Rights in Jordan and others v UK (May 2001), it would be very much in the spirit of those judgements.

50. Clause 72 (Powers and duties of court security officers) does not specify whether the power to search articles extends to the examination of documents. The Human Rights Commission believes that it should not, particularly in relation to legally privileged documents.

NORTHERN IRELAND HUMAN RIGHTS COMMISSION
7 January 2002

The Probation Board for Northern Ireland
Written Submission

INTRODUCTION
The Probation Board for Northern Ireland (PBNI) welcomes the publication of the Implementation Plan and the Draft Justice (Northern Ireland) Bill.

There are a number of issues which require clarification, particularly in the area of Youth Justice and, therefore, we wish to reserve our final position until we are clearer about our role and responsibilities in the future.

PBNI issued a substantive response to the Report of the Criminal Justice Review in which we endorsed the major thrust in the document. However, we were particularly concerned with the recommendation that the Probation Board be changed to a Next Steps Agency because this would have threatened our ability to work with the community in our efforts to reintegrate offenders. We are pleased that this decision will be left to the Assembly to debate and decide in the fullness of time.

The Board holds fast the principle that local communities and families play a critical role in the process of helping offenders reform, thereby facilitating their presence in their communities. Having a broad spectrum of community and public body partnerships is critical for the whole area of juvenile justice. However, we would at this point question whether or not the proposed structures and philosophies in relation to juvenile offenders will deliver this.

The Board holds the view that the strategies, structures and lines of accountability should accommodate and deliver on the requirements of Government, offenders and the community. Our view is that a Next Steps Agency is not the best structure to achieve this.
HUMAN RIGHTS AND GUIDING PRINCIPLES
The Board fully endorses that respect for Human Rights and dignity should be the core value of the Criminal Justice system. We also fully support the proposal that this should be achieved on the basis of shared strategies and training across all the agencies within the system. We agree that strenuous and sustained efforts are required to ensure the establishment and continuation of community confidence in Criminal Justice.
PROSECUTION
The Board fully agrees with the decision that all prosecutions should be vested in a single independent authority. The availability of diversionary schemes to the new Prosecution Service is applauded by PBNI, but this will be dealt with in greater detail later in this short paper. One area of concern we have is the absence of criteria which would facilitate the prosecutor in making a decision to divert a young person from court proceedings. Our overall view is that the Prosecution Service's deliberations and decisions must be as transparent as possible, however, the Bill does not appear to support this concept.
THE JUDICIARY
The concept of judicial independence is fully endorsed by the Board, as is the appointment on the basis of meritocracy.
THE COURTS
The Board fully subscribes to the principle that courts should not only work effectively and efficiently, but should also work in a way that promotes confidence in the Criminal Justice System.
RESTORATIVE AND REPARATIVE JUSTICE
The Criminal Justice Review sets aside a full chapter on Restorative and Reparative practice, as does the Implementation Plan, however, the Bill amalgamates Restorative Practice and Youth Justice.

We fully support the principles underlying the Implementation Plan and the Bill in that it embraces the rationale of partnerships.

The introduction of a Youth Conferencing System will afford the opportunity to enhance the hallmarks of a criminal justice system, ie public protection, reparation, rehabilitation and proportionality within a framework of victims, family and community partnerships. The concept of agency partnerships will also be helped by the structure. However, we question whether or not a Next Steps Agency is the best way of ensuring delivery of the above concepts.

The role of the Probation Board in the Bill is, to say the least, ambiguous and therefore, we will be seeking clarification before we can comment in detail. We are sure, however, that the years of skill, expertise and partnership with the community built up by probation should not be lost or sidelined by this proposed development.

We are particularly concerned that the use of Pre-Sentence Reports compiled by PBNI, which have been recognised across the system as a valuable contribution to decision-making with regard to sentencing, will not play a part prior to, during or after the conference process.

It is unclear in the proposals exactly who will provide the Conference Coordinator with an appropriate assessment of the offender.

We fully subscribe to the principle of consensus within the Planning Group with each individual bringing to the discussion his or her own interest. We would question the advisability of any one interest having the power of veto prior to the plan being presented to the prosecutor and/or court.

The prosecutor has discretion in relation to his/her decision to direct an offender to a conference. We would strongly advocate a set of guidelines to support the decision-making.

Whilst the prosecutor has discretion regarding the use of conferences the court, in general, does not have the same discretion. We believe the court should have such discretion, again supported by a set of guidelines.

We very much welcome that custody, where necessary for under 14 year olds, will be provided by Social Services.
COMMUNITY SAFETY
We require clarification on the proposed relationship between the Community Safety Unit, Community Safety Partnership, Community Safety Council and the relevant agencies who have a clear responsibility in helping to prevent crime, reduce fear of crime and thus, contribute to community safety. We do not believe that the case for the proposed triplicate structure has been made. Relationships and roles are unclear, and there is no obvious benefit for initiating a new additional unit rather than leading with the current district partnership.
SENTENCES, PRISONS AND PROBATION
Sentences
The Board is supportive of the incorporation of restorative elements in the sentencing framework for adults. We will wholeheartedly contribute to the review that is proposed and will examine the sentences within our area of responsibility to see how we might enhance the restorative elements.
After-Care And Support
The Probation Board currently provides post-release statutory supervision for approximately 50% of sentenced prisoners. The Board is again encouraged by the commitment to the resourcing of supervision of prisoners returning to the community. Where there is no Statutory Licence it is, in practice, not possible for us to resource this work. We look forward to participating in the working party to be established by NIO. We would seek to have this group widened to include other statutory authorities, such as Housing Executive, etc. Increased resources would allow us to develop release packages which need to be evaluated in order to see whether they can be effective, without the introduction of compulsory Post-Release Licences.
Prisons And Probation
In a wider context we are working closely with the Prison Service to attain compatibility between interventions within community and custodial sentences. We are developing joint models for assessment of risk. We are committed to the establishment of a unified system for the approval and accreditation of Programmes in Criminal Justice in Northern Ireland.
Non-Payment of Fines
We are disappointed that the Implementation Plan does not address the issue of persons imprisoned for non-payment of fines. Although the periods in custody are short, the numbers involved remain significant. We believe that other alternatives could fit well into a restorative framework.
VICTIMS AND WITNESSES

Whilst the Board fully endorses the enhanced position of Victims and Witnesses within the Criminal Justice system, care needs to be taken to guard against expectations engendering which cannot be met. For example, PBNI would be very circumspect indeed about discussing details of individuals with whom we are working.

The period ahead will be challenging for everyone involved in the Criminal Justice System, and the Board looks forward to making a full and positive contribution to future developments.

THE PROBATION BOARD FOR NORTHERN IRELAND
December 2001

Report on the Draft Justice (NI) Bill and the Criminal Justice Review - Implementation Plan

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