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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. 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.

    2. 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.

    3. 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.

    4. 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

    1. 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.

    2. 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

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    1. 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.

  1. HUMAN RIGHTS AND GUIDING PRINCIPLES

    1. 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.

    2. 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.

    1. 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.

    2. 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."

    3. 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

    4. 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.

    5. 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.

    6. 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.'

    7. 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.

    8. 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.

    9. 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)

    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

    1. 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.

    2. 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."

    3. 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."

    4. 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.

    5. 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

    6. 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.

    7. 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 and a 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.

    8. 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.

    9. 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.'

    10. 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.

    11. 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

    12. 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.

    13. 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.

    14. 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.

    15. 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.

    16. 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.

    17. 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.

    18. 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.

    19. 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.

    20. 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.

    21. 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.

    22. 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

    23. 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

    24. 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.

    25. 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.

  1. CODES OF ETHICS

    1. 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

  1. LEGAL AID

    1. 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.

    2. 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.

    3. 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.

    4. 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

  2. PUBLIC PROSECUTION SERVICE

    1. 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).

    2. Sinn Fein is disappointed at the NIO dilution of the far-reaching proposals made in the Review Groups report relating to the prosecution.

    3. 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.

    4. 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.

    5. 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

    6. 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.

    7. 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

    8. 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".

    9. 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).

    10. 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.

    11. 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.

    12. 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.

    13. 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.

    14. 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.

    15. 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.

    16. 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.

    17. 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.

    18. 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.

    19. We urge amendment so that the Prosecution Service takes on this power. The guidelines must be accessible to the public.

    20. 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.

    21. 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.

  3. JUDICIARY

    1. 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.

    2. 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.

    1. 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.

    1. Sinn Fein would argue that, once again, the opportunity of maximising the conflict resolution aspect of the review process has been missed.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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.

  1. COURTS

    1. 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).

    2. 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.

    3. 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.

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