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SESSION 2001/02
SECOND REPORT
Report on
AD HOC COMMITTEE

REPORT ON THE DRAFT JUSTICE (NI) BILL
AND THE CRIMINAL JUSTICE REVIEW - IMPLEMENTATION PLAN (Continued)
  1. 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?

  2. 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.

  3. 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.

  4. 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.

  5. 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?

  6. 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.

  7. 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.

  8. Mr Campbell: Is it more than bureaucracy and endeavouring to shield the Minister if things go wrong?

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. Mr Paisley Jnr: Are you arguing for a more transparent system of plea-bargaining for juvenile offenders?

  16. 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.

  17. Mr Paisley Jnr: If the draft Bill is implemented in its current form, will it be detrimental to the role of the Probation Service?

  18. 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.

  19. 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.

  20. 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?
  21. 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.

  22. 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?
  23. 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.

  24. 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.

  25. 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?

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. Ms Lewsley: Do you have statistics that indicate that those who do not receive the package re-offend?

  31. 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.

  32. 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?
  33. Mr Brannigan: If at all possible it should. We can envisage situations or considerations which would prevent that, but such circumstances should be exceptional.

  34. 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.
  35. 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.

  36. 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.

  37. 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.

  38. 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?

  39. 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.

  40. 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.

  41. 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.

  42. 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.

  43. 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?

  44. 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.

  45. 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?

  46. 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.

  47. 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.

  48. 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?

  49. 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.

  50. Ms Lewsley: I take it that you also hope to be part of the restorative justice partnership?

  51. 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.

  52. 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.

  53. Mr Rowntree: Whether attending a diversionary conference constitutes a criminal record must be clarified

  54. 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.

  55. The Chairperson: We must stop there. I apologise for the time that was lost due to the vote. Thank you for your contribution.

  56. 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 )
  57. 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.

  58. 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.

  59. 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.

  60. 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.

  61. 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.

  62. 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?

  63. 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.

  64. 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.

  65. 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?

  66. 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.

  67. 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?

  68. 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.

  69. 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?

  70. 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.

  71. 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.

  72. 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.

  73. 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.

  74. 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.

  75. 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.

  76. 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.

  77. 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.

  78. Mr Paisley Jnr: What percentage of the Bar does the Bar Council of Northern Ireland represent?

  79. 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.

  80. Mr Kerr: It probably represents about a quarter or a third of the Bar.

  81. Mr Larkin: That is a reasonable figure.

  82. Mr Paisley Jnr: Is it the case that you are not taking a corporate view in regard to Clause 62, which deals with symbols?

  83. Mr Larkin: Yes, absolutely.

  84. Mr Paisley Jnr: Are you taking any position on that, one way or the other?

  85. Mr Larkin: No.

  86. 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?

  87. Mr Larkin: Is that a reference to the rule-making power that is conferred upon the Lord Chief Justice?

  88. 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.

  89. 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.

  90. 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?

  91. 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.

  92. Mr Paisley Jnr: Would you be equally concerned if politicians became involved in that process?

  93. Mr Larkin: Politicians are already involved; it is just a question of which politicians?

  94. 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?

  95. 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.

  96. 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."

  97. 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.

  98. 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.

  99. 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.

  100. 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?

  101. 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.

  102. The Chairperson: What will be the impact of the restorative justice provisions, particularly the proposed youth conferences?

  103. 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.

  104. 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.

  105. 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.

  106. Mr Maginness: Should a court have an absolute right to refer a child or a juvenile to youth conferencing?

  107. Mr Sayers: Are you asking whether the courts should have the right to do that against the wishes of the child?

  108. 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?

  109. Mr Sayers: Such a situation, where the hands of the court are apparently tied by the legislation, is always to be avoided.

  110. Mr Maginness: Is it the case that the court can consider a youth conference only when the juvenile has pleaded guilty?

  111. Mr Sayers: A conference can be implemented when a juvenile has been found guilty.

  112. 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?

  113. Mr Sayers: That would be appropriate.

  114. 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?

  115. 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.

  116. 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?

  117. Mr Larkin: Yes, the Attorney General still has that power.

  118. Mr Maginness: Apart from those distinctions, are there any real differences between the current system and the proposed one?

  119. Mr Larkin: The changes are not radical.

  120. Mr Maginness: They are insubstantial.

  121. 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.

  122. Mr Maginness: Is it correct that the Criminal Bar Association wanted the changes to go much further?

  123. 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.

  124. 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?

  125. Mr Larkin: They certainly have a large interest. It would not be for us to judge whether that influence would be disproportionate.

  126. Mr A Maginness: You are very diplomatic.

  127. Mr Larkin: We like to think that that is one of our skills.

  128. 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.

  129. 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.

  130. 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.

  131. Mr A Maginness: Who was dissatisfied?

  132. Mr Larkin: From time to time, dissatisfaction was expressed from all quarters. It certainly included individual members of the Bar.

  133. 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.

  134. Mr Larkin: There is also the contribution of the First Minister and Deputy First Minister, acting jointly.

  135. 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.

  136. 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.

  137. Mr A Maginness: Their only power is simply to accept or refuse.

  138. Mr Larkin: Absolutely.

  139. Mr A Maginness: What will happen if they refuse and judicial appointments commission proposes the same candidate again?

  140. 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.

  141. 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?

  142. Mr Larkin: We have no objection to such an influence.

  143. Mr A Maginness: Would you be supportive of that?

  144. Mr Larkin: We have taken no corporate view in favour of it, but we not taken a position against it.

  145. Mr A Maginness: Finally, would it be better to have politicians in the place of lay members?

  146. Mr Larkin: My colleague said - I hope audibly - that that depends on the politicians.

  147. Mr A Maginness: If it were Ian Paisley and I?

  148. 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.

  149. 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.

  150. 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?

  151. 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.

  152. Mr A Maginness: In regard to prosecutorial fines, there is no conviction if there is a fine.

  153. 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.

  154. 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.

  155. Mr A Maginness: No conviction,

  156. Mr Larkin: I will ask Ms McNally to comment on the element of the Bill relating to the law commission.

  157. 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]

  158. 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.

  159. The Chairperson: Thank you for your time, which, I note, you gave up for free.

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