COMMITTEE FOR JUSTICE

OFFICIAL REPORT
(Hansard)

Justice Bill: Parts 7, 8 and 9

2 December 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Thomas Buchanan
Sir Reg Empey
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Mr David McNarry
Mr John O’Dowd

Witnesses:

Mr Robert Crawford	)	Northern Ireland Courts and Tribunals Service
Ms Geraldine Fee	)
Ms Laurene McAlpine	)
Mr Gareth Johnston	)	Department of Justice

Mr Adrian Colton	)	Bar Council of Northern Ireland
Mr Dermot Fee	)
Mr Brendan Garland	)

Ms Gillian Clifford	)	Women’s Aid Federation Northern Ireland
Ms Noelle Collins	)
Ms Sonya Lutton	)
Ms Patricia Lyness	)

Mr Norville Connolly	)	Law Society of Northern Ireland
Mr Alan Hunter	)
Mr Brian Speers	)

The Chairperson (Lord Morrow):

With us again is Gareth Johnston, deputy director of the justice strategy division in the Department of Justice. From the Northern Ireland Courts and Tribunals Service (NICTS), we have Robert Crawford, head of the public legal services division, Geraldine Fee, head of criminal policy and legislation division, and Laurene McAlpine, head of civil policy and legislation.

The first briefing on the legal aid clauses will last 10 minutes, followed by five minutes for clarification on any issues that might arise. That is the procedure that we will use. Mr Johnston, will you lead off?

Mr Gareth Johnston (Department of Justice):

Thank you, Chairman. Today we are presenting on Parts 7, 8 and 9 of the Justice Bill, which deal with legal aid, miscellaneous matters and supplementary provisions. My colleagues here from NICTS are very much in the lead in those areas, and I will defer to them shortly and let them present the provisions to the Committee. However, there are a few provisions in the miscellaneous matters in Part 8 that fall to the Department. I will cover those briefly at the end of the short descriptive presentation, and I will also outline the provisions in Part 9. In line with the structure that the Committee has set out, I now hand over to Robert Crawford, who will discuss Part 7 of the Bill, which relates to legal aid.

Mr Robert Crawford (Northern Ireland Courts and Tribunals Service):

I am conscious of the time, so I propose to run through the legal aid clauses of the Bill quite quickly. Clause 85 contains a new power to introduce a fixed means test for criminal legal aid. There is already a means test for criminal legal aid. If a judge considers that a defendant has insufficient means, that will satisfy the means test. The power in clause 85 would allow us to set a fixed test; in other words, it would allow us to set a specific income or assets limit to rule someone ineligible for legal aid.

Clause 85 attracted the most concern during the consultation process. The responses were mainly about the possible impact on access to justice, and I reassure the Committee that we are alive to that concern. At present, more than 95% of defendants receive legal aid in criminal cases here. In England and Wales, where there has been a means test for some time, the level is around 93%, even with a fixed means test in place. We commissioned an independent economist to look at what impact a fixed means test will have and to examine different ways of assessing that. We expect that analysis to be with us on 20 December, and, as we said in previous meetings, we will share that analysis with the Committee and place copies of it in the Assembly Library so that anyone with an interest can see exactly what it says.

The final outcome of any proposal would be subject to subordinate legislation, which would be subject to scrutiny by this Committee and a full equality impact assessment (EQIA). We do not have fixed ideas on the level of the fixed means test at present. We need to look at the costs of administering such a test. It is certainly not a foregone conclusion that we will go forward with the test after the detailed analysis has been done; the costs may prove to be such that it would not save a great deal of money.

Clause 86 relates to the recovery of defence costs orders. Under this clause, we hope to bring in a power to allow for the recovery of defence costs in cases in which it is clear that a defendant has ample means to fund his own defence. That would operate at the end of a trial, at which stage a judge could make such an order. We intend that it would be used only in cases that are very clear — where the defendant very clearly has the money to pay for his own defence. We intend to bring it in for Crown Court cases first. The average cost of a Crown Court case is £9,000, so there are significant sums of money to be recovered if we decide to use it. We anticipate that, if it works, we will extend it to the Court of Appeal in future years.

Clause 87 adds the guarantee credit element of the state pension scheme to the passporting benefits for the purposes of eligibility for civil legal aid. That is very much a technical thing. There are a number of passporting benefits that give automatic eligibility for legal aid. The guarantee credit element of the state pension scheme came in after those were specified in the existing legislation. It is right to add that. It is currently dealt with by ministerial guidance; we are putting it into the regulations because the opportunity is there to do that.

Clause 88 deals with compassionate bail and repeat bail applications. Clauses 100 and 101 introduce new provisions for those. It is right that legal aid should be available for compassionate bail and repeat bail applications, and, again, we are taking the power under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 to make sure that that is available.

In clause 85 we apply the power to make a means test to the 1981 Order. Clause 89 applies that power to the Access to Justice (Northern Ireland) Order 2003. The criminal legal aid provisions of the 2003 Order are not yet in force, and when they come into force they will largely replace the 1981 Order, hence the need for two separate provisions here.

Clause 90 repeals article 41 of the 2003 Order. That repeal is necessary to allow the Legal Services Commission to put money into what is called a litigation funding agreement (LFA). Money damages is the area concerned in civil legal aid. It is not a high priority for legal aid when resources are tight, and we anticipate that when the funding code comes in, it will be a low priority for such funding. That is why an alternative approach is being explored by the Legal Services Commission with the legal profession in discussions with the Bar and the Law Society. That has not produced an agreed way forward yet, but we anticipate that, if an agreed way forward is found, there will be a need for start-up funding for such an arrangement. We need to repeal this particular article to allow that to be done. Again, it is not clear yet whether agreement can be reached and whether the funding will be proceeded with.

Clause 91 makes a number of minor changes that largely extend the scope of civil legal aid. The first change is to ensure that legal aid is available for a person specified in a protection from harassment order. That ensures that the person who is protected by the order can get legal aid to argue against the variation or discharge of a restraining order made to protect him or her.

The next change replaces references to the Asylum and Immigration Tribunal with new references to the First-tier Tribunal and Upper Tribunal. The functions of the first Asylum and Immigration Tribunal have transferred to the new First-tier and Upper Tribunals, so that is a straightforward change of terminology.

Clause 93 allows an application for repeat bail to be made to the Crown Court where bail has been refused by a Magistrate’s Court and there has not been a change in circumstances. At present, only the High Court can hear such applications. By widening the range of courts that can hear those applications, the provisions are intended to free up High Court time and to allow its resources to be used more efficiently. The provisions have the support of the judiciary. We conducted a targeted consultation with the professions and other interested groups, and no negative responses were received.

Clause 95 creates the power to allow court rules to be made to specify the circumstances in which information on family proceedings concerning children can be shared without the need for the express permission of the court. For example, that will allow a parent to discuss a case about a child with an elected representative or with a professional adviser such as the Children’s Commissioner. At present, such a conversation could potentially be a criminal offence or a contempt of court. The purpose of clause 95 is simply to make it easier for information on family proceedings concerning children to be shared in certain circumstances. It is important to highlight that the clause does not provide for media attendance in family courts. As indicated, clause 95 is an enabling power only, and any court rules that are made will be subject to full public consultation to ensure that they are in the best interests of children in Northern Ireland.

Clauses 96 and 97 make adjustments to the membership of the Crown Court Rules Committee and the Court of Judicature Rules Committee and are designed to enhance the expertise that is available to those committees. The committees make the rules that govern the practice and procedure that should be followed in the Crown Court and the High Court respectively. Membership of those committees is prescribed in statute and includes the Lord Chief Justice, certain members of the judiciary and solicitor and barrister representatives.

Clause 96 amends the membership of the Crown Court Rules Committee to include a public prosecutor nominated by the Director of Public Prosecutions and a person nominated by the Attorney General. Clause 97 extends the membership of the Court of Judicature Rules Committee to include the Attorney General or his nominee. Members may have noted from the briefing paper that we had intended originally to amend only the Crown Court Rules Committee membership to add a public prosecutor nominated by the Director of Public Prosecutions. However, at the suggestion of the Attorney General, we looked again at the proposals and took the view that, as well as including a public prosecutor on the Crown Court Rules Committee, there is benefit in including a person nominated by the Attorney General. The Attorney General also suggested that he or his nominee should be a member of the Court of Judicature Rules Committee. Again, we considered that proposal and agreed that it would be desirable to enhance the expertise of the committee.

Clause 98 is a very technical amendment to the Criminal Appeal (Northern Ireland) Act 1980. It amends the 1980 Act to ensure that the Court of Appeal deals with any appeal against a sentence imposed by the Crown Court following committal to that court for consideration of a confiscation order under section 218 of the Proceeds of Crime Act 2002. There is currently no statutory provision to allow such an appeal to be heard by the Court of Appeal, which is the normal venue for such appeals. Effectively, the clause will address a gap in the current legislation. As the Committee will be aware from the briefing paper, the clause, as currently drafted, contains a minor typographical error that was not picked up before the Bill’s introduction. Therefore, we will table a small amendment to the clause at Consideration Stage to enable renumbering.

Finally, clause 99 contains a provision that will expand the powers of Magistrate’s Courts in criminal proceedings to allow them to issue a witness summons to direct a third party to appear and produce any item of evidence where the court is satisfied that that person is able to provide material evidence. At present, the powers of the Magistrate’s Court are limited to occasions when such an item would be admissible in evidence.

This amendment will bring the powers of the Magistrate’s Court into line with those of the Crown Court. As a result, it is hoped that more cases that are capable of being dealt with by the Magistrate’s Court will remain there rather than defendants choosing to be tried in the Crown Court to avail themselves of its wider third-party disclosure powers. Again, no objections were received to this provision in our targeted consultation and it was welcomed by the Bar Council. That finishes my section, and I will pass over to Mr Johnston.

Mr Johnston:

We have reached the aspects of the Bill that concern necessary things and detail rather than exciting things and headlines. Clause 94 tidies up a remaining bit of legislation on crimes with offensive weapons, including knives. It brings the available sentences into line with those for other sorts of knife crimes, following indictment and conviction, that mean up to four years imprisonment. Being armed with a dangerous or offensive weapon with intent to commit an arrestable offence is not prosecuted often, but it is a useful offence to have because it can be prosecuted in respect of having offensive weapons on private property, and the police have confirmed that they would like to keep it.

So, we will hear more about that?

Ms G Fee:

Yes.

The Chairperson:

Thank you for your presentation. Please remain in the Public Gallery. Other issues may arise later.

We now have representatives of the Bar Council, who will outline key points and issues regarding Parts 7, 8 and 9, which are legal aid, miscellaneous and the supplementary provisions. I welcome Adrian Colton QC, the chairman of the Bar Council; Dermot Fee QC, a member of the Bar Council; and Brendan Garland, the chief executive. Mr Mark Mulholland is not here. You are very welcome. You will have 10 minutes in which to outline your brief, and after that we will have a question and answer session, which will last for a maximum of 20 minutes.

Mr Adrian Colton (Bar Council):

I thank the Committee for the invitation to address the Committee. You have already met me and Mr Garland. I asked Mr Fee to come because he has a particular interest and expertise in civil legal aid. That subject might be of interest to the Committee. I apologise for Mr Mulholland being unable to attend. He is a real barrister and is in court at the moment.

The Chairperson:

Somebody has to do it.

Mr Colton:

Indeed. Before I address Parts 7, 8 and 9, I acknowledge the significant amount of work that has clearly gone into drafting the legislation. It is a pleasure and privilege to consider legislation drafted in Northern Ireland rather than in Westminster. It is a welcome piece of legislation.

On another positive note, the Bar Council particularly welcomes some features of the Bill. We very much support the adjustment of the membership to the Crown Court Rules Committee and the Court of Judicature Rules Committee, although I take on board Mr McNarry’s comment that it should be clear that it is the Attorney General. Those appointments will add to the expertise of those committees. I encourage this Committee to take on board the views of those committees when it considers legislation. They can provide relevant insights into some of the matters that this Committee has to consider and I urge it to liaise with those bodies if appropriate.

I also make similar comments about the Law Commission. The Bill deals with the accounts of the Law Commission, but I encourage this Committee to proactively engage with the Law Commission. It can come forward with very good, substantive law. It is not always attractive or headline grabbing material, but it has come up with some excellent reports that have, in the past, gathered dust in libraries. I urge that the Committee to take on board the advice and views of the Law Commission. It has recently completed extensive work on land law which might commend itself to this Committee, even if it is not something that will necessarily attract any media attention.

Clause 99, which is about the power of a Magistrate’s Court to, in essence, obtain third-party disclosure, is particularly welcome. The legislation is detailed and comprehensive, but, in effect, it will provide for fairer trials in the Magistrate’s Court and we feel that those provisions are long overdue.

Many of the miscellaneous provisions, which are set out in Part 8, are tidying-up matters that fill gaps in legislation. Certainly, in our view, they are unobjectionable. I do not have any particular comments to make on them, unless I am asked to do so.

There are, however, two particular matters in the Bill about which we have reservations and want to raise concerns. If permitted, we would like to address those with you. The first relates to clause 85, which deals with eligibility for criminal legal aid, and the suggested change to the means test for that. The other relates to clause 90, which deals with litigation funding agreements (LFAs). Both those clauses will potentially impact significantly on access to justice. If it is acceptable to the Committee, I propose to deal with criminal legal aid and Mr Fee will deal with LFAs.

On a general level, it might be worth remembering the Bill’s policy objectives, which are set out in its explanatory and financial memorandum. They are to reduce costs, do business better and improve access to the justice system. It is fair to say that there is obvious tension between those laudable objectives. On one hand, to reduce costs may well be desirable for the legal aid budget. However, in certain circumstances, it is bound to impact on access to justice. What we should seek to do, and what my submission focuses on, is to ensure that we get the balance right. I have concerns about that balance with regard to those two provisions.

Of course, the other declared objective of the Bill is to deliver better and enhanced services for victims. The victims who are envisaged in the legislation are, primarily, victims in criminal law. However, it is important to remember that, in the context of civil litigation, there are also people who sustain serious injuries at work or as a result of clinical negligence and so on, and they are also victims. Their rights and entitlements should also be borne in mind. It is significant that less than 1% of the legal aid fund is spent supporting those who are victims in the civil sense — those who sustain personal injuries. That should be borne in mind when considering support for people in money damages claims.

I want to turn to the means test for criminal legal aid, which is dealt with in clause 85. Clearly, what drives that provision is the objective to reduce costs. The Bar fully accepts that there is a need to reduce the legal aid bill in this jurisdiction. Indeed, we have been engaged for over a year in discussions with a view to reducing the legal aid bill from £104 million to £79 million. We support that move. We are determined to ensure that legal aid fees will meet that objective. This is a different matter, however, as it will impact on people’s access to justice and levels of representation.

I want to raise a number of matters about the outworkings of clause. The first is that it is our strongly held view that the decision to grant legal aid should remain a judicial function: it should remain the function of the court and not of the Legal Services Commission or some other body that is appointed by the commission. The court and judges are best placed to judge what is in the interests of justice. Remember that, in the granting of legal aid, there are two tests: interests of justice and financial eligibility. That function and those decisions should remain with the judiciary. They should not be transferred to the Legal Services Commission.

The second matter to consider, if there is to be a financial eligibility test, is the levels. I understand that the legislation is closely modelled on the English and Welsh systems. I am subject to correction by the Northern Ireland Courts and Tribunals Service when its representatives respond; however, it is my understanding that, currently, in England and Wales, someone whose gross income is less than £11,000 per annum, or £12,500 if they have dependants, is automatically entitled to legal aid. If someone earns between £11,000 and £20,000, or between £12,500 and £22,500 with dependants, it depends on their disposable income. Anyone who earns over £20,000, or £22,500 if they have dependants, is not eligible for criminal legal aid. If that sort of provision is introduced in this jurisdiction, it will have serious consequences indeed for legal representation. It cannot be right that a schoolteacher, for example, or someone with a reasonably good standard of living who earns more than £22,500 a year, would be denied legal aid if they were faced with a serious criminal charge. What are the levels to be? That is a very important question.

The next issue is whether the levels will be different for different courts. I can well understand that the test for someone who is facing a minor charge in a Magistrate’s Court would be very different from that for someone who is facing, for example, a murder charge or a serious fraud charge in the Crown Court. The Committee needs to look at that. Will there be different levels for different types of crime in different courts?

Moving on from that: if there is to be a financial limit, how is that assessment to be made? It seems that there is going to be a very high level of administration if there is to be some sort of formal assessment of means. Applications will have to be made; committees will have to be set up to review those; there will have to be a right of appeal for those applications; and, certainly if the civil experience is anything to go by, that will result in very significant administrative costs. Perhaps more importantly, it will also result in delay, and I know that this Committee and others that are dealing with legislation are very anxious to speed up the criminal process and to root out avoidable delay. It seems to me that, if that type of test is introduced in the Crown Court, it will inevitably result in delay. People are entitled to say that they are not ready for trial because their legal aid application has not yet been considered. There are inherent dangers in approaching criminal legal aid in that way: it will result in further administration and could well result in delay.

I will make just a couple of short points. I will focus on the litigation funding agreements in clause 90, which allows the Legal Services Commission to enter into those agreements under the Access to Justice (Northern Ireland) Order 2003. The situation in respect of money damages cases, which have been mentioned — essentially personal injury cases — is that those are no longer a priority within the Legal Services Commission’s funding of legal aid. The Committee should look very carefully at that position.

At the moment, there is a legal aid budget of £104 million. The funding of personal injury cases represents between £1 million and £2 million — 1% of the overall budget. That gives access to justice to people who might be described as victims: people who are injured in industrial accidents, road traffic accidents, etc, sometimes very seriously. The problem is that, if legal aid is not available to those people for money damages cases, what is the alternative? The alternative that is being suggested is litigation funding agreements, which would allow third parties — essentially insurance companies — to finance that type of litigation. That access would be very restricted. We think that the effect of that would be to prevent access to justice for victims who have claims that are entirely justified and for which they are entitled to compensation.

The reason for the amendment is to try to allow the Legal Services Commission, to take, as I think it was put, an “alternative approach to funding”. However, I am asking this Committee and anyone else who is considering this matter to look again at the question of whether money damages should be excluded from legal aid. If £104 million is spent, and if most money damages cases are successful, and if it costs only £1 million or £2 million — 1% of that overall budget — is it appropriate to use another untried way of providing assistance that may be unsuccessful? The question is whether one should look again at continuing to provide civil legal aid at a very small cost to victims of injuries. The reason why the costs are small is because most of these cases are successful. They are genuine cases.

Negative resolution rules would give the Assembly and this Committee the least amount of opportunity for control. There will be consultation at the draft stage, but once the rule is laid, the Committee either has to agree to adopt it in its entirety or pray against it. It cannot amend it. Other forms of statutory legislation, such as affirmative of confirmatory resolution, give more control and more chance to debate.

Mr McDevitt:

Mr Fee, I have a question for clarification. On the face of it, LFAs sound like a good thing because they are incentivising the legal system to pursue money damages cases that have a high chance of success and they are underwriting themselves.

Mr D Fee:

We move on to a briefing from Women’s Aid Federation Northern Ireland on the key points and issues regarding the miscellaneous and supplementary legal aid provisions in the Bill.

I welcome the team: Gillian Clifford, regional policy and information co-ordinator for Women’s Aid Federation Northern Ireland; Patricia Lyness, management co-ordinator for Belfast and Lisburn Women’s Aid; Noelle Collins, team leader for Belfast and Lisburn Women’s Aid; and Sonya Lutton, deputy helpline manager. Ladies, you are very welcome. You have 10 minutes in which to outline your brief. There will then be 20 minutes of questions. I know that we digressed marginally earlier, but we made up for that in our own time in the session with the lawyers. However, I suspect that, if I were not as flexible with you, you would remind me of that.

Ms Patricia Lyness (Women’s Aid Federation Northern Ireland):

Good afternoon, Chairman and members. On behalf of Women’s Aid, I thank the Committee for the opportunity and invitation to give evidence today on two issues that are of great importance to the women and children who use our services across Northern Ireland and to the wider community. We want to talk about access to legal aid for women who have experienced domestic violence, specifically the cost of legal proceedings and of obtaining a non-molestation order. We also want to highlight the treatment of women as both victims and witnesses in legal proceedings involving domestic violence and to make recommendations in that regard. We will endeavour to respond to any of the Committee’s questions or issues. The Chairperson has already introduced us, so I will skip the introductions.

Women’s Aid in Northern Ireland has over 35 years’ experience of dealing with domestic violence and of providing and developing safety and support protection and safety services for women and their children. Domestic violence is one form of violence against women that occurs across the world. It is a crime and a violation of the most fundamental human rights: the right to live free from torture, violence and the threat of violence, and, indeed, the right to family life. Those principles are enshrined in European international human rights standards and conventions, of which the UK Government are signatories.

Our work includes challenging the attitudes and beliefs that perpetuate domestic violence and promoting healthy and non-abusive relationships. Across our 10 local groups, we have 12 refuges providing a total of 300 bed spaces. In 2009-2010, over 1,000 women and almost 900 children sought refuge with Women’s Aid. We also have a floating support service that supports and enables women to remain in their home, if it is safe to do so. Last year, that service dealt with almost 3,000 women and over 3,000 children. In 2009-2010, the 24-hour domestic violence helpline managed over 32,000 calls, which represents a 70% increase on the previous year.

Women’s Aid welcomes the Minister’s victim-centric approach to the Department’s ongoing review of the justice system and the proactive, positive and highly productive engagement that we have had with departmental officials, representatives from the Northern Ireland Legal Services Commission and others during the consultation process on a number of key issues.

It is not our intention in this presentation to make generalisations about the conduct of the legal profession in its representation of women who have experienced domestic violence. Rather, we wish to illustrate the issues raised by the women with whom we work and the concerns that we as an organisation share. We fully acknowledge that there are numerous excellent examples of practice in the legal profession. Indeed, that has been our experience. However, we feel that best practice, particularly in family law, needs to be clearly established, identified and standardised across Northern Ireland.

Non-molestation orders and access to civil legal aid have become matters of increasing concern to Women’s Aid, particularly regarding the cost of obtaining such orders. Non-molestation orders come under legal aid advice and assistance legislation. The income threshold for that form of legal aid is extremely low. In 2010, a woman must have a disposable income of no more than £234 a week to receive legal aid for non-molestation order proceedings. The figure of £234 a week does not take into consideration mortgage or childcare payments. It is, however, inclusive of benefits, child maintenance payments and any income from part-time work. Through the exclusion of tax credits, a single mother working part time is brought just over the threshold of legal aid.

In seeking a non-molestation order, the initial ex parte order can cost up to £400. Within two weeks, the pursuit of a full non-molestation order can cost a further £400, or considerably more, particularly if the order is contested by the respondent. Full orders are frequently contested, and, depending on the duration and complexity of the proceedings, it is not unusual for a contested order to cost in excess of £2,000. Our legal consultants have stated that, if the respondent has a criminal case pending that is linked to domestic violence, the respondent’s legal representatives will frequently encourage the respondent to contest the full non-molestation order as a failure to do so may prejudice the outcome of the criminal case.

For many women who are unable to access legal aid, those costs can be prohibitive and are an additional, unsustainable financial burden at a time of enormous fear and uncertainty. It is a source of particular concern to us that our legal advisers have highlighted that, in the vast majority of cases in which women have been asked to pay for a non-molestation order, they have decided not to pursue proceedings. We are currently attempting to quantify the information from the women with whom we work, and we will be happy to submit those findings to the Department and the Committee when they become available. Solicitors have reported to us that there are cases where financial constraints have forced a woman not to pursue an order and where they have felt strongly that there has been a clear and demonstrable risk to the safety of the woman and her children as a result of not doing so.

It has been suggested that an alternative approach for women may be the pursuit of an injunction against harassment. Although we note that harassment orders have a much higher threshold for legal aid — currently a disposable income of £9,937 per annum, inclusive of mortgage, rates and childcare payments — we also note that, in cases of injunction against harassment, there is a strict adherence by courts to a policy that the complainant must be able to demonstrate that two recent incidents of harassment have occurred. In that context, it is also a matter of concern that women not resident with partners cannot obtain a non-molestation order, as resident boyfriends or partners are not considered to be an associated person for the purposes of an order. We are increasingly seeing young women reporting violent behaviour from partners, and it is essential that those young women are able to report that violence and seek legal protection at the earliest opportunity. They should not be forced to wait for a subsequent incident to occur. From a humanitarian and risk-management perspective, that is a highly dangerous practice. Similarly, to be in receipt of legal aid for an injunction against harassment, the applicant must demonstrate that the merits of bringing an injunction are satisfied.

Although the breach of a non-molestation order constitutes a criminal act, Women’s Aid is troubled by the apparently subjective nature of interpreting the breach of an order and the inconsistent arrest policy. The PSNI is charged with determining what constitutes a breach, and we would welcome clarification on its operational policy and guidelines for arrest in cases of breach of a non-molestation order. We fully support the key recommendations in the Criminal Justice Inspection Northern Ireland report on domestic violence and abuse in respect of decisions to arrest, specifically its recommendation that supervisors should be more proactive in reviewing the approach taken in domestic violence cases, especially where decisions not to make an arrest have been made.

We also note that provision exists in the legislation for costs to be awarded in non-molestation order proceedings. However, costs are seldom awarded. Through more than three decades of work, Women’s Aid has observed that financial abuse is often a characteristic of domestic violence. Indeed, perpetrators often utilise the legal system and processes to further abuse by intentionally prolonging legal proceedings to create financial hardship for the victim. That is particularly problematic when the perpetrator is in receipt of legal aid and the victim is not. We understand that the awarding of costs will be an additional burden on the legal aid fund. However, the awarding of costs in those cases, or a reduction of legal aid moneys paid, might well serve to prevent vexatious litigation or behaviour that is designed to frustrate the process. It may also serve to discourage unnecessary delay.

Mr Brian Speers (Law Society of Northern Ireland):

This is my one-week anniversary, which is a significant milestone.

The Chairperson:

We wish you well.

Mr Speers:

Thank you very much. I am still standing, or sitting, after one week.

The Chairperson:

You have 10 minutes. I said that to your other legal colleagues, but they did not pay much attention to me. [Laughter.]

Mr Speers:

I thank the Committee for allowing us to come along and make some observations. I will ask our chief executive to talk about the issues under review.

Mr Alan Hunter (Law Society of Northern Ireland):

First, I thank the Committee for inviting the society to make representations today, as the president indicated. The society has a specific interest in a number of proposals in the Bill, and I am aware that the Committee has our written statement, so I do not propose to restate those, given the time constraints. However, I will flag a number of the issues that we highlighted in our submission.

Clauses 12 and 13 relate to the examination of an accused through an intermediary and are modelled on the Coroners and Justice Act 2009 in England and Wales. Our submission voices concerns that the provisions may lead to the prosecution of the mentally unfit. We acknowledged that the Bill contains important safeguards, including that a direction is given only when the court is satisfied that it is required to ensure that the accused receives a fair trial. However, we felt it important to bring that particular matter to your attention. The relationship between the intermediary and the defendant’s legal team is a further issue that we highlight.

Our submission mentions the view held by criminal law practitioners — and none of us here today is a criminal law practitioner — that defendants appearing via live links find it difficult to understand and participate in the proceedings. We highlight a particular concern with respect to those who are suffering from a mental disorder, and we note that the Bill contains important safeguards. However, we think that it is important to bring that to your attention today.

As regards the diversionary factors and penalty notices set out in the Bill, we have highlighted to the Committee that those, effectively, operate outside the justice system, and we raised a number of concerns about how the scheme will work. We pointed to some safeguards that we think are required, particularly relating to the conditional caution, where we highlighted the need for appropriate safeguards.

There are two significant proposals on legal aid in the Bill. First, there is the criminal legal aid means test. A copy of the executive summary of our submission to the Courts and Tribunals Service was annexed to our response to the Committee. Members will have noted that the society considers it appropriate that those whose earnings are sufficient and who are found guilty of crime should not benefit from legal aid. However, the prescribed financial limits will require scrutiny. It has already been brought to your attention, and I will bring it to your attention once again, that, in England and Wales, the prescribed levels are likely to remove from the scope of criminal legal aid such diverse groups as nurses, cleaners, teachers, firefighters, civil servants, and ambulance drivers. A further factor is that defendants are likely to be suspended from their work while on trial or awaiting trial.

The society welcomes the removal of the prohibition on the Legal Services Commission funding legal services under litigation funding agreements. We are working with the commission in that context. However, we are keen to ensure that access to justice for all is guaranteed.

The principal issue that we would like to raise is that of rights of audience for solicitor advocates. The Committee is aware that it was the intention that the Justice Bill would contain proposals for the extension of rights of audience for solicitor advocates in the higher courts and for them to appear in cases certified for counsel in the Magistrate’s Court. This proposal was withdrawn prior to the consideration of the Bill due to a decision by the Attorney General that the Bill may be in breach of article 25 of the services directive. That came as a disappointment to the society and the Minister. The society was particularly surprised about the basis for the Attorney General’s opinion, and we sought our own opinion on the matter. The Committee is aware of the opinion provided by Sir Sydney Kentridge QC. He stated that he could see no basis upon which the Attorney General had based his opinion. A copy of Sir Sydney’s opinion has been provided to the Department, and we await its views. We also requested sight of the Attorney General’s full opinion.

The society considers that the current position is most unsatisfactory, leaving, as it does, members of the public in Northern Ireland without the choice of their solicitor or another solicitor as advocate in the higher courts. Members of the public in the South, England and Wales and Scotland all have that choice.

No. We do not.

Mr Connolly responded to the point about the solicitor advocacy. I just want to add that, in order to be a solicitor advocate, a rigorous and high-quality course is offered. As Mr Connolly said, we are anxious to ensure that there is a quality of service provided. We are extremely confident that the solicitor members will be well able to meet any quality standards and that the additional training that we have set in place will address any reasonable concerns about quality of delivery of advocacy services.

The Chairperson:

What do you say, Mr Hunter, to those who say that the lack of access to justice, if legal aid is not available, is overplayed? I have heard it said that that is overdone.

Mr Hunter:

I suppose, Mr Chairman, I might say a very great deal, but I will try to be succinct.

Access to justice is not an optional extra for the state. It is a foundation of the state and an emanation of it. Secondly, it is important, if there is to be equality under the law, that people have recourse to enforce their rights or to defend themselves against prosecutions or actions brought by the state whether or not they have means. Therefore, it is ultimately a key requirement of the state to ensure that people have access to the courts, whether or not they have means. Although it may not be particularly popular at any time, it underpins society, and says a good deal about the type of society and state that people want to live in and want to have their rights respected in.

The Chairperson:

So, you defend it to the last?

Mr Hunter:

Yes. Absolutely.

Mr Givan:

I think all of us around the table agree that access to justice is vitally important, but the level of representation is in question. The question is about how much legal representation someone should be entitled to and how much should the state pay for. Access to justice is very important. Some would say that, compared with other parts of the United Kingdom and beyond, we have a gold-plated version.

What do you say to those who say that, when a client is granted legal aid, the individual members of the legal profession who represent that client ensure that the case goes on to maximise the fees that they can receive? I have heard the accusation that those in the legal profession deliberately attempt to ensure that they receive the maximum amount, once the client is deemed eligible for legal aid.

Mr Speers:

You have to remember that, when a solicitor engages with a client, he is obliged to do his best for the client, pursue their remedies, argue points and make representations on the client’s behalf. If, in your suggestion, there is any sense that someone should do half a job, rather than all of it, we must reject that. Professional conduct rules say that we must act in the best interests of the client and pursue their interests ahead of our own. As president of the Law Society, that seems to me to be well worth emphasising at all times. That is what our members are expected to do.

I know the point you are making. It is difficult without looking at individual cases, but, when legal aid is granted, there are other controls. The courts can intervene and case-manage the process, so I do not think it is a by-ball for people to exploit the system to the maximum in the way you suggest. I support what the chief executive said, namely, that the entitlement for equality of arms and to pursue rights is a very important feature of civilised democracy.

The Chairperson:

Mr Speers, do you accept that a much more efficient and practical way to do it is to establish an upper limit on an case, irrespective of the number of times it goes in and out of court, and that it is it, full stop? The barristers and lawyers can then win 100 times if they wish, but the legal bill would never change. Would that be an efficient way to do it?

Mr Hunter:

In principle, the society works on a basis of fixed standard fees in a number of areas. Certainly, much of the recent negotiations around fees have been on the basis of trying to identify a reasonable fixed fee for a particular case, but elements of a case can be unpredictable, and circumstances can arise. For example, the defence’s responsibility might be how the prosecution has conducted a case, or there may be other circumstances that arise that need to be considered, so there is always a need for some exceptionality and provision to deal with those exceptional circumstances. However, yes, the society has been working on the basis of seeking to establish a set of fees that would apply to certain types of proceedings, and that has been the basis of the negotiations.

Mr McCartney:

I have a couple of points for clarification. Your submission states that levels of eligibility must be set appropriately. Have you put forward any suggestions or is that just a wide —

Mr Hunter:

I have a particular interest in the resolution of disputes. It is fair to say that there has been some encouragement from remarks that have been made by the Lord Chief Justice and the Minister that, perhaps, a focus should be on early resolution. I am simply comfortable with the fact that solicitors act in their clients’ best interests. In many cases, that will be to advocate strongly, to litigate and to have adjudication on the issues. In some cases, however, it is in their clients’ interests to explore more effective resolution options. Certainly, during my year as president, we will bring forward initiatives to increase resolution-type work through mediation training and through solicitors becoming involved as resolvers of disputes, which, traditionally, was often a solicitor’s role as a counsellor and adviser as well as a representative and champion. There is much to be explored in looking at ways to satisfy the court and litigation process that all attempts have been made to resolve disputes before they get too far down the line.

In answer to your question: there are checks and balances. It is easy to say that lawyers are spinning it out, but in reality, you often have determined and energetic clients who want particular points to be espoused. In doing that, lawyers are simply representing their clients’ instructions.

The Chairperson:

We are marginally over our time for this session, but Sir Reg wanted to ask a question.

Sir Reg Empey:

Have you met and consulted your colleagues at the Bar on the legislation? I know that the situation can sometimes be complex, but I wondered whether there had been any co-operation on the matter.

Mr Speers:

There is generally co-operation and frequent contact. However, the Law Society’s submission was compiled only by us and is not the result of any joint approach. That can be seen in the differences of emphasis this afternoon.

Sir Reg Empey:

I just wondered whether you had consulted or talked to the Bar. I also wondered whether you had attempted to marry your different views together. However, perhaps that is not the case.

Mr Speers:

Not yet.

The Chairperson:

We agree that all the points made by the Law Society and the Bar need very careful analysis, and I hope that my earlier presentation reassured the Committee that we will do that and will come back to the Committee with the research that will be available later this month. Furthermore, if the Committee wishes, we will give it a flavour of our plan and analysis on that issue before the consultation that will need to take place on any proposals before they come to the Committee as legislation.

Therefore, we will look at all the points that have been raised. They are not, for the most part, new points. The issues on the impact on access to justice and the fact that some people may not get proper representation have all been raised, and we will consider them. However, at this stage, we are looking at introducing an enabling power rather than the detail. We still think that it is worthwhile to have the enabling power in place. If we can find a way to resolve a lot of the issues satisfactorily, we may well want to proceed to make further, more detailed proposals. However, we do not assume that we will be able to solve them satisfactorily. We will need to look at them in detail.

If the Committee were to recommend that, I am sure that the Department would look at it. Having come before the Committee on other matters, I, personally, do not feel that there has been any lack of scrutiny. I would get the same questioning whether negative resolution procedure or affirmative resolution procedure is adopted.

I want to say a bit about the litigation funding agreement. The access to justice review is under way, and it will look at alternatives to money damages legal aid. It is not a case of having either money damages in legal aid or the litigation funding agreement. That point was picked up at the end of the Law Society’s presentation. However, there may well be other areas and other ways of doing bits of that kind of work. For example, if a state agency is involved in a medical negligence case against a hospital, there may be a way of putting in a procedure that does not go near a court.

The issue of criminal injuries was mentioned earlier. That system operates in such a way that there are no legal fees at all. A solicitor will ask an applicant in a criminal injury case to sign upfront that he will hand over an amount — usually 15% — of the claim. That is not a part of the scheme, but that is how the arrangement is made, because a free service is provided by Victim Support for people making criminal injuries claims.

In a case where the action is against a state body, it may well be possible to put in place arrangements that do not need legal aid at all. Proper support and advice may be funded separately and at a lower cost. That is one of the areas that the access to justice review will look at. We will have an interim report on that at the end of February. Therefore, there is a point to be made there.

If, however, we have a limited budget, money damages will be seen as a lower priority by the Legal Services Commission. That is a certainty because there are other areas — indeed, Women’s Aid mentioned some them — that will be seen as a higher priority: those that involve safety, for example. That will be a consequence of having limited funds available.

If we can do it more quickly without legislation, there would be no formal Committee procedure, but we would be quite happy to come back and brief the Committee. I am sure that the Minister would want us to come and brief the Committee on that if you would find it helpful. I should say that the Legal Services Commission is examining this area anyway. It is under review. This idea came from the Legal Services Commission, and we have worked together on it.

The Women’s Aid representatives talked about inserting a clause in the Bill. What they want, which is a complete waiver and no contributions, can be achieved through subordinate legislation. It does not require primary legislation, and it could be done by amending the existing legislation. Another way of doing it, depending on the Committee’s agreement, is to move the non-molestation order application into criminal legal aid. There is currently no means test, but, if we were to look at introducing one in the future, non-molestation orders could be excluded from that. That would have an instant effect, because there is a fixed means test for civil legal aid, and that is their problem.

Mr McDevitt:

I am trying to get to the bottom of where your mind is, Mr Crawford. It sounds to me that you are quite determined to meet these ladies’ requirements. Is it the policy objective to meet the basic requirement, which is that women presenting as victims of domestic abuse would have an absolute right to free access to justice?

Mr Crawford:

It is not quite in those terms. Free access to justice would be available, but there might be a contribution at a later stage if someone’s means were found to be fairly significant. It would still be considerably less than they would have to pay outside the legal aid system. In the longer term, the Legal Services Commission, which is the civil legal aid policy lead, will consider the issue of completely free access.

Mr McDevitt:

Am I hearing you right that your advice to us is that this is not the right place to try to have that debate now?

Mr Crawford:

It is unnecessary to put it in primary legislation anyway. There will be an opportunity to put it in subordinate legislation if there is a desire to do that. I do not want to speak for Women’s Aid, but I think that it is quite happy with the proposals that we have made as an interim measure. It will also give us the opportunity to see whether they are working and whether any other changes need to be made.

Mr Johnston:

Women’s Aid had a number of thoughts on how the system could cater better for women who are going through domestic violence proceedings. Only yesterday, the Criminal Justice Inspection report on domestic violence and abuse was published, and I am sure that the Committee will want to look at that in due course. A specific point was made regarding concerns about what constitutes a breach of a domestic violence non-molestation order and about the police taking a common approach to that across Northern Ireland.

Particular reference was made to the first recommendation in the Criminal Justice Inspection report, which is about PSNI supervisors proactively monitoring the approach to domestic violence cases to ensure consistency of approach. Yesterday, the police welcomed the recommendations in the report. They said that they are currently in the process of exploring the operational outworkings of the recommendations but that they are committed to working closely with victims. If the Committee wants a fuller briefing on the report, the Department will be in a position to provide it.

There was also a concern that proceedings provided opportunities for perpetrators to perhaps further the abuse, and I will mention two specific points on that. First, there is concern on the part of the organisations that represent victims of domestic and sexual violence about questioning by barristers during cross-examination in court. In the sexual violence action plan, we are committed to exploring that matter with the judiciary. There has been some initial contact, and there will be further discussions on that in the new year.

Secondly, victims have been concerned that, in preliminary proceedings, which are called committal proceedings, for sex cases in particular they might be exposed to quite rigorous questioning that is then, in a sense, repeated at the trial. We are looking at reforms to the committal proceedings, and we hope to issue a consultation paper next year.

In addition to the points on legal aid and on solicitor advocates, which I will come to in a moment, the representatives of the Law Society made a few comments on live links. That was really just by way of confirming that they had raised issues and were exploring them with the Department. We can certainly address with them the points made in their submission.

The Law Society mentioned alternatives to prosecution, which we will discuss with the Committee next week. It flagged up the importance of putting sufficient safeguards in place to ensure that any admission by an offender is made in the full knowledge of the case before him and of the consequences. Guidance will be issued on those alternatives to prosecution — fixed penalty notices and conditional cautions — and I will make sure that those points are considered in the preparation of that guidance.

Finally, I wondered whether Laurene wanted to say anything about solicitor advocates.

Ms Laurene McAlpine (Northern Ireland Courts and Tribunals Service):

As the Law Society indicated, we intend to bring forward fresh clauses on rights of audience for solicitors. I am fairly confident that it will be possible to bring those forward as an amendment to the Bill. We had helpful and constructive discussions with the Law Society and the Attorney General, and I think that we can devise provisions that meet the concerns but still deliver the Minister’s policy.

The Chairperson:

I take it that all those clauses will be made available to the Committee beforehand?

Mr Johnston:

Yes, certainly. Our intention is that any amendments that we plan to introduce at Consideration Stage will be made available to the Committee when it starts to look at the Bill clause by clause.

Mr Crawford:

Mr McDevitt:

It does not rest easily with me at all as it stands, so I think any advice would be welcome.

The Chairperson:

OK. That is agreed.

We will move on to the consideration of evidence received on clauses relating to sports law. You will recall that, at our meeting last week, it was agreed that the Committee would discuss, at this weeks’ meeting, the evidence taken and the issues raised about the clauses relating to sport and that the departmental officials would not be in attendance.

I advise members that they have copies of papers that highlight some of the key issues that the Committee may want to discuss and reach a view on. Members also have a copy of a letter from the Minister of Justice regarding the flexibility for implementing clause 43 in relation to rugby. The letter indicates that that is not Ulster Rugby’s first preference and that it would prefer to be removed from the clause altogether, but it is a possible way forward.

This is the first consideration of evidence on clauses relating to sports law, and there will be further opportunities in the new year to discuss them. However, if there are clauses that the Committee clearly agrees should be amended, it is helpful for those to be identified as early as possible to enable appropriate action to be taken. Does any member wish to comment on the evidence that we heard on sports law? If so, please feel free to speak.

Sir Reg Empey:

We have a letter from Ulster Rugby. The good behaviour of fans at Ravenhill has been talked about. In the main, that is true, but as someone who has represented that area for a long time, I have to say that it is not the whole picture. I was speaking to the police today, and there are occasional issues that are largely connected with the social activities in the beer tent and so on where there is a certain amount of antisocial behaviour, such as people urinating in gardens in the surrounding area. There is quite a bit of disturbance in the evenings with taxis arriving and so on, so it is not a totally benign environment. Generally speaking, I agree with the thrust of where Ulster Rugby is compared with others, but I would not want the impression given that —

The Chairperson:

It is not paradise.

Sir Reg Empey:

It is not as simple as that.

I thought that the big issues in general at the meeting, which I think was a fortnight ago, were whether we felt that existing common law dealt with a number of the potential problems, as opposed to superimposing another set of offences. Take, for example, the possession of containers on the bus: if somebody was coming back from Scotland on a bus and was bringing things back from there, it could constitute an offence. This is a very important issue and a matter of grave concern to people, but there is always the risk of us being a wee bit OTT on these matters. Now, I am no expert, and you have been chairing this Committee since its inception, but I just wondered whether the clash between existing legal remedies and existing law, where the crossover relates to some of the new clauses, is an area that the Committee would want to focus on in its further consideration?

The Chairperson:

Just a bit.

Mr McCartney:

In cricket, decisions never used to be questioned. Even that is changing now.

The Chairperson:

How do members want to proceed? Are you happy to come back in the early part of next year with your decisions firmly in your mind? The various groups may want to formulate where they stand on each issue before they come and talk to us about that.

Mr McCartney:

As Lord Browne said, we discussed the matter this morning at the Committee for Culture, Arts and Leisure. We have had a number of discussions. Perhaps, the Committee for Justice has more of a rationale. At times, what is missing is people’s understanding of what we are trying to achieve. Earlier, we made the point that some of those provisions are lifted from English law. At the time that its legislation was introduced, England had a problem with hooliganism, particularly at soccer grounds, which needed to be tackled and has been tackled. In the main, that has been successful, notwithstanding what happened last night. The same problem does not exist here. Therefore, some of the legislation seems unnecessary.

Lord Browne:

Another point is that, to enforce legislation in England, it has cost clubs in the second league, which is equivalent to the former fourth division, in excess of £100,000 on CCTV, marshals and policing. We must consider how clubs will cope if all that legislation is introduced. They already suffer financially.

Mr McCartney:

We talked about alcohol on buses. We have all been on the way to a big game and saw buses lined up on the side of the road on unofficial pit stops. However, many supporters’ clubs provide buses and enforce a strict no-alcohol policy. Therefore, it is a matter of the relationship between the supporters’ club, its members and the transport company.

The Chairperson:

The Chairperson:

We will leave that matter there, but we will return to it.

COMMITTEE FOR JUSTICE

OFFICIAL REPORT (Hansard)

Justice Bill: Parts 7, 8 and 9

2 December 2010

Members present for all or part of the proceedings:

Witnesses:

The Chairperson (Lord Morrow):

Mr Gareth Johnston (Department of Justice):

Mr Robert Crawford (Northern Ireland Courts and Tribunals Service):

The Chairperson:

Mr McDevitt:

Mr Crawford:

Mr McDevitt:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McCartney:

Mr Crawford:

Mr McDevitt:

Mr Crawford:

Sir Reg Empey:

Mr Crawford:

Sir Reg Empey:

Mr Crawford:

Lord Browne:

Mr Crawford:

Lord Browne:

Mr Crawford:

Mr Johnston:

The Chairperson:

Ms Geraldine Fee (Northern Ireland Courts and Tribunals Service):

Mr Johnston:

Mr McDevitt:

Ms G Fee:

Mr McNarry:

Ms G Fee:

Mr McNarry:

Ms G Fee:

Mr McNarry:

The Chairperson:

Ms G Fee:

The Chairperson:

Ms G Fee:

The Chairperson:

Mr Adrian Colton (Bar Council):

The Chairperson:

Mr Colton:

The Chairperson:

Mr Colton:

The Chairperson:

Mr Colton:

The Chairperson:

Mr Dermot Fee (Bar Council):

The Chairperson:

Mr Colton:

Mr McDevitt:

Mr Colton:

Mr McDevitt:

Mr Colton:

The Chairperson:

The Committee Clerk:

Mr McDevitt:

Mr D Fee:

Mr McCartney:

Mr D Fee:

Mr McCartney:

Mr D Fee:

Mr McCartney:

OFFICIAL REPORT
(Hansard)