Comments On The Implementation Plan For The Criminal Justice Review And The Justice (NI) Bill
PFC | 01 January 2002
The work of the Pat Finucane Centre (PFC) revolves around the principle articulated in Article 7 of the Universal Declaration of Human Rights, namely that:
‘All are equal before the law and are entitled without discrimination to equal protection of the law.’
The PFC broadly welcomed the original recommendations outlined in the Review as they seemed to embrace this notion and offered a means by which a criminal justice system that embodies Article 7 could be established.
We are therefore disappointed at the extent to which the Review’s recommendations have been diluted. We are particularly disturbed at the dramatic dilution of the recommendations relating to prosecution, which were among the most far-reaching proposals made by the Review. We urge the British government to readdress this area, recognising that what happens at the prosecution stage is of fundamental importance within the criminal justice system due to the prosecuting authority’s role as the central link between law enforcement and legal sanction.
In addition, the PFC is very concerned about a number of key weaknesses with the implementation of reform. Firstly, there is no time-scale for implementation of the majority of the recommendations. It is essential that firm deadlines for implementation are set to prevent change being delayed. In addition, we are concerned that the most radical structural and procedural reforms are proposed to take place only after devolution of criminal justice matters has occurred. This is not acceptable. The Good Friday Agreement provided for the establishment of the Criminal Justice Review in recognition of the failure of the various criminal justice agencies to fulfil their statutory, legal and moral obligations. The need for reform is therefore vital, and is itself an essential element of the process of transition of our society. Leaving such significant reforms on the backburner until such a time as the British government deems the political climate to be suitable to devolve criminal justice functions will not engender public confidence in a system which has already failed society. The PFC urges the implementation of reform of the criminal justice system as soon as possible, both to provide society with a fair, open, accountable and efficient criminal justice system and to prevent reforms becoming subject to political manipulation.
Secondly, the PFC is concerned that there is no oversight mechanism established to oversee the changes envisaged, as is the case with the reform of policing structures. It is vital there is such oversight as the proposed reforms will affect every agency within the criminal justice system and therefore it is essential that a body is charged with ensuring these changes occur, and that they occur at an appropriate pace. Leaving this to the individual agencies and/or the NIO will entail leaving the process of reform in the hands of those very individuals who have been resistant to change and who have operated within, or led, the very agencies which require fundamental reform as a result of the controversies that have plagued them in the past. It is simply not acceptable that these individuals are now placed in charge of the process of reform and the pace at which it will occur.
The PFC has focused comment on the provisions relating to the Prosecution, and has also addressed the issues of Human Rights and Guiding Principles, and Victims.
Human Rights and Guiding Principles:
Recommendation 1 – human rights training:
The Review placed great emphasis on the centrality to the criminal justice system of the promotion of human rights and protection of human dignity. This requires that all individuals who are working within the criminal justice system receive training which can provide them with the knowledge and understanding necessary to foster a climate within each agency and the system as a whole which meets these requirements. However, the Implementation Plan has left this vital element of training for all staff to the discretion of the individual agencies, and with no time-scale by which it must begin. This training should be centralised and should refer explicitly to relevant international human rights standards. It would be beneficial for staff to attend compulsory refresher courses to consolidate their original training and also to outline recent jurisprudence domestically and in the European Court of Human Rights in addition to any new relevant domestic or international standards. Within this training the role of defence lawyers and also the rights of victims and of the accused should be outlined and understood to be central elements within the criminal justice system. This training should be carried out by individuals who are not members of staff of the criminal justice agencies but who are experts in the fields of criminal justice and human rights. It is only through such training that an ethos of protection of human dignity and respect for human rights can begin to develop. To borrow from the Patten Commission report (p21), ‘Respect for the human rights of all … should be an instinct rather than a procedural point to be remembered.’
Recommendations 2 and 3 – criminal justice aims, and publication of aims, plan and annual report:
The PFC welcomes the acceptance of the Review’s recommendations relating to the aims for the criminal justice system and their publication. However, we are concerned at the procedure for determining these aims as there is no indication that the Statement of Purpose and Aims will be subject to public consultation. The PFC would urge provision to be made for a draft version of the statement to be made available for consultation.
Recommendation 7 – statements of ethics:
The PFC welcomes the acceptance of the Review’s recommendation that each agency must publish a statement of ethics. For this to be an effective mechanism to increase accountability and transparency the code must apply to all members of staff, it must be based on relevant international standards, and it must address the issue of staff membership of secret oath bound organisations. The codes of ethics must explicitly refer to the role of the agencies in terms of protecting human dignity and respecting human rights.
It is also vital that the statement of ethics for each agency are subject to public consultation as the person who is charged with writing the statement is apparently the head of each agency (for example the Implementation Plan refers to the aim of the Chief Constable to present a draft Code of Ethics to the Policing Board by the end of 2001). Yet these individuals have headed their respective agencies throughout the controversies that resulted in provision being made in the Good Friday Agreement for a review of the entire criminal justice system. A firm time-scale must be set for publication of the statements of ethics. It is also fundamental to the effectiveness of the Code of Ethics that provision be made for disciplinary procedures to be instituted if the code is breached.
Recommendation 8 – membership of organisations:
The Plan is confusing on this matter, simply passing the matter on for further consideration without outlining who will be involved with making this decision or the time-scale involved. While it is clear that there are issues relating to freedom of association, this does not mean criminal justice agencies should knowingly employ individuals who are members of secret oath bound organisations, just as they must not employ any individual who is a member of a proscribed organisation. It is our considered view that those working within the criminal justice system should not be permitted to participate in organisations such as the Orange Order (*) which is dedicated to opposing one of the main Christian churches, the Roman Catholic church. This is a key issue that will adversely affect public confidence in the criminal justice system if it is not addressed in a meaningful manner.
(*) We specifically refer to the Orange Order. Membership of the Apprentice Boys of Derry for instance does not carry similar overtly sectarian obligations.
Recommendation 9 – Defence lawyers:
The UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Cumaraswamy, has made it clear that the police were not the appropriate agency for investigating threats made against defence lawyers. Police investigations do not meet the criteria required for an independent investigation, and it is therefore essential that a new mechanism be introduced.
In terms of training to educate criminal agency staff about the role of defence lawyers, we are dissatisfied that this has been left to individual agencies to deal with in whatever way they see fit, if they see fit at all – the office of the DPP for instance faces credible allegations that it was involved in the official cover-up following the murder of Pat Finucane. Equally the failure to prosecute those officers involved in death-threating Rosemary Nelson has yet to be explained. Many defence lawyers are therefore understandably distrustful of the system. There must be clear, published guidelines for this training and it must be entrenched in international standards relating to defence lawyers. There must be external supervision of this training.
Recommendation 16 – complaints mechanisms:
While the creation of accessible and expeditious complaints mechanisms is positive, the PFC find it totally unacceptable that it ‘will be for individual agencies to take it forward’. This discretion is being given to the very agencies that have been found to require radical reform, with apparently no guidelines for what the mechanism should look like and with no time-scale in place for instituting these mechanisms. These mechanisms are vitally important to increase the transparency and accountability of the agencies and should be instituted as swiftly as possible through a centralised mechanism, and their implementation should be brought forward rather than awaiting devolution of powers.
Law Officers and the Public Prosecution Service
The PFC broadly welcomed the Review’s proposals in respect of the Prosecution. These proposals were among the most extensive and radical of all the sections of the Review, and offered a real opportunity for a new beginning for both the prosecution service and the prosecution system in general. The PFC are therefore disturbed at the drastic dilution of the proposals, whereby the radical proposals for reform have simply been translated in legislation to a name change and a number of minor readjustments to the present system.
The PFC argues that the DPP has failed to uphold international standards relating to prosecuting authorities, to victims rights, and to the rights of defendants. The DPP has also failed to secure the confidence of the public – thus failing to achieve the stated aim for the creation of the office in 1972. In reality the actions of the DPP have managed to further diminish public confidence in the criminal justice system as a whole. While it is generally recognised that the Department of the DPP has operated in a satisfactory manner in day-to-day decision-making (although lack of efficiency is a concern), it is in the ability to administer justice in sensitive cases that the standards of independence, fairness, transparency, accountability and efficiency have all proved elusive. Ensuring the prosecution process is efficient and effective and also complies with international human rights standards are not mutually exclusive goals, rather they are interdependent.
It is against the backdrop of the failure of the DPP to perform his statutory functions in a manner which is respectful of human dignity and upholds human rights, that the PFC is profoundly disappointed with the dilution of the Review’s proposed reforms in the Implementation Plan and the Justice Bill.
Recommendations 17 and 58 - establishment of a single prosecuting authority, and renaming the office of the DPP:
The PFC welcomes the move to establish a single, independent prosecuting authority. We also welcome the name change, although we are conscious that simply changing the name of an institution does not guarantee a fresh start unless the structures and ethos of that institution are radically overhauled. Key to this is the need to change personnel, including senior office holders and the DPP himself. Only through a process of appointment of new recruits and re-appointment of former staff through an open, accessible process where new standards are set for the staff and whereby the staff pledge allegiance to the code of ethics and the code of conduct can change begin. We would also recommend that application should be open to individuals from other jurisdictions, subject to equivalent eligibility criteria. The Review indicated the need to bring in a range of staff from diverse backgrounds and we reiterate this, including the need to actively seek to recruit defence lawyers to the prosecution service.
We reiterate the need for name changes for the senior office holders, suggesting in particular that the title Chief Prosecutor should replace the current title Director of Public Prosecutions.
Recommendations 18 and 22 - investigation to remain with RUC/PSNI, and advice to RUC/PSNI on prosecutorial issues:
The PFC is concerned that the prosecution service has not been given any power to supervise investigations carried out by the RUC/PSNI. This power is a mechanism that could potentially create trust and confidence in an area where this does not currently exist. It should be noted that there is increasing evidence in international practice of earlier involvement of the prosecuting authority in the investigation. While it is generally accepted that there should be separation of investigation and discretion to prosecute in an adversarial situation, there should be provision for supervision of all aspects of the investigation by the prosecuting authority. This is particularly important in the cases identified by the Review as ‘the more complex and serious cases’.
There is also concern that the RUC/PSNI will still have discretionary powers through the power to determine whether diversionary measures are recommended instead of processing the accused through the formal justice system. In particular, it seems the RUC/PSNI will have the power to offer cautions, and this process needs rigorous and open checks and balances to ensure no partiality or unfairness in practice. Ideally this power should be removed from the RUC/PSNI so that all prosecutorial decisions are carried out by the prosecuting service within the scope of its new, broader remit (see section below re diversionary options).
The Review clearly envisaged a more proactive role for the prosecution service than has been provided for in the legislation and Implementation Bill. The British government makes a clear distinction between prosecutorial and investigatory advice, despite international models demonstrating a trend towards prosecuting authorities becoming involved much earlier in the investigatory process. The involvement of a lawyer from the prosecution service from the earlier stages of the investigation would remove control from the RUC/PSNI, while maintaining the traditional adversarial system. In our submission to the Review we asserted that ‘having a lawyer directing investigations is hoped to perform a dual function: firstly, lawyers are more likely than PSNI officers to be concerned with the protection of the rights of the suspect rather than simply ensuring charges are being brought; secondly, the rights of the victim are better protected as additional protection for suspects minimises the chances of charges being dismissed at a later stage as a result of the rights of the suspect having been violated.’ We therefore urge that this issue be readdressed.
Recommendations 19 and 20 - statement of ability and determination to prompt an investigation, and referral to the Police Ombudsman:
The inclusion of this recommendation by the Review was a result of the Review finding that ‘in practice Article 6(3) is formally involved on rare occasions.’ It is clear that the review therefore intended this power to be utilised more frequently by the new prosecution service thereby providing the opportunity for the service to take a more proactive role. However, the Bill simply restates the existing provision and the Plan gives no indication of encouraging the use of the power in the manner envisaged by the Review. The Code of Practice should indicate a willingness to use the power more regularly, and should state that if the prosecutor is not satisfied with an Article 6(3) response the case must automatically be referred to the Police Ombudsman.
Recommendations 36 – 41 – diversionary options:
The issue of which agency is responsible for determining whether diversionary mechanisms are to be availed of rather than the formal criminal justice system in individual cases is vague in the Implementation Plan. In terms of the decision to offer a caution to an offender, this discretion must lie with the prosecuting authority. It is a logical extension of the prosecution service’s responsibility for all prosecutions that this agency is also responsible for deciding whether it is appropriate in individual cases to offer a caution and to therefore make a decision not to prosecute. Leaving this discretion to the RUC/PSNI will not promote confidence in the impartiality of this system. The PFC therefore asserts that Recommendation 37, which outlines the option of prosecutors referring a case back to the RUC/PSNI ‘with a recommendation to caution’, would be a more appropriate procedure to prevent the RUC/PSNI having the ability to act as a filter for cases.
The Implementation Plan ignores the Review’s recommendation that diversionary options should be utilised to refer mentally disordered offenders or drug users for treatment. We would urge that this provision should be included in the legislation. The PFC encourages the move to make provision for diversion mechanisms to be introduced for juveniles and urge that this process be introduced as swiftly as is practicable. The recommendation for making arrangements for restorative interventions has also been ignored and needs to be addressed.
Increasing interaction with the community is an essential requirement of the prosecuting authority generally (see section below re local offices). However, it is particularly important within the context of the establishment and effective operation of diversionary mechanisms. It is essential that there is a meaningful engagement of the prosecution service with the community and other agencies and service providers about what is involved in the diversionary process and to understand what diversionary schemes and options may be available at the local level. If there is genuine engagement with local communities and adequate resources are directed to the provision of diversionary schemes then a constructive partnership can emerge.
We would argue, though, that the provision in Recommendation 40 that the prosecution service should do this ‘together with the police’ is not appropriate. If the investigatory and prosecutorial processes are to be kept independent of each other (as argued for by preventing the prosecution service having a supervisory role in RUC/PSNI investigations) then it is more appropriate that the prosecution service is the agency which engages with local communities in relation to diversionary mechanism and options.
We would encourage the introduction of the above diversionary mechanisms as soon as possible, and do not think that this should await devolution of criminal justice matters.
Recommendations 43 - 46 – Attorney General, participation in Assembly business, end to power of direction, and the relationship between prosecution and Attorney-General:
The PFC welcomes the reform of the post of the Attorney-General so that this will be ‘a locally sponsored post … who … would have oversight of the prosecution service’ appointed by the First and Deputy First Ministers. We would urge that the additional functions of the Attorney General that were highlighted by the Review should be clearly stated in legislation as these functions were determined after a detailed analysis of law officers and prosecuting authorities in various jurisdictions. The PFC would urge the creation of a post of Attorney as soon as possible, and believe that this is a requirement that should not await devolution of criminal justice functions in order to take forward other reforms within the prosecution system generally.
The PFC welcomes the provision for the Attorney to participate in Assembly business with no voting rights as a means of increasing accountability of the prosecution system generally. The PFC also welcomes the ending of the power of the Attorney-General to direct the prosecutor as a means of ensuring independence of the prosecution service, and we urge the end of this power as soon as possible in order to increase public confidence in the prosecution system generally.
The PFC welcomes the acceptance of the recommendation to confirm the independence of the prosecutor in legislation. The Implementation Plan states that ‘the government is considering the practicalities of a new offence, particularly in light of the approach in the Republic of Ireland’, and the PFC advocates the inclusion of such a provision in legislation whereby anyone who seeks to influence the prosecutor’s decision-making, including the Attorney-General, can be prosecuted. This will help to ensure the discretion to prosecute is not subject to external interference, and instead operates within an independent and accountable system.
Recommendation 49 – giving of reasons:
The failure to implement this recommendation is totally unacceptable as failure to do so in the past has been key to undermining public confidence both in the DPP and in the criminal justice system as a whole. While we recognise the need to balance the rights of victims to information and the rights of the defendant to privacy, the PFC believes there is currently undue secrecy within the prosecution process. The Review recommended that ‘the presumption should shift towards giving reasons’ and indeed failure to provide reasons will potentially violate the Human Rights Act as a result of the recent judgement of the European Court of Human Rights in Jordan, Kelly, McKerr and Shanaghan v. UK. This judgement places a requirement on the prosecuting authority to provide reasons for a decision not to prosecute in cases involving suspicious or controversial killings. It is essential that people directly affected by a case, and/or people acting on their behalf, are given reasons for a decision not to prosecute as failure to do so in the past has been a key factor in preventing victims and/or their family from finding closure.
The PFC advocates provision for the Human Rights Commission to access prosecution files and RUC/PSNI investigation files in cases where controversy has arisen from the actions of the RUC or the prosecutors office in order to determine what has transpired. This would be consistent with the HRC’s powers of investigation.
Recommendation 50 – prosecution service publication:
The publication of an annual report, a code of practice and a code of ethics is a positive development. This is an essential mechanism for increasing the openness of the prosecution system and service and is also a key accountability measure for the prosecution service. It is essential that the code of ethics and the code of practice are based on international standards, as recommended by the Review. It is essential that these codes reflect standards relating to the role of prosecutors, the rights of victims, the rights of defendants, and standards relating to the use of force by law enforcement officers. Draft versions should be available for public consultation prior to their publication.
Recommendations 55 – 57 – publication of complaints procedures, independent element to complaints procedure, and audit of complaints procedure:
The PFC is alarmed at the failure to introduce an independent element to the complaints procedure. The government’s argument that an independent element already exists as complaints are examined by a member of staff other than the person whose actions have given rise to the complaint highlights a total disregard for provision of a fair, open and accountable prosecution service. It is vital that this issue is re-addressed and an independent element is included in the complaints mechanism.
Recommendation 59 – appointment of head of service:
As stated above, the PFC supports a change of title for the head of the prosecution service. This is in accordance with the stress the Review put on the need for a name change as it ‘would help to demonstrate … that the remit and responsibilities of the organisation have changed considerably.’ We suggest that the new name should be Chief Prosecutor.
The PFC believe that the eligibility criteria of the head of service should be more flexible in order to provide the opportunity for individuals from other jurisdictions to apply for the job, subject to equitable eligibility criteria and language criteria. The PFC is concerned that the Director and deputy Director are to continue to have automatic continuance of service until the age of 65 with the possibility of this being extended. We believe there needs to be a fixed tenure for the heads of service (as is the case for the Attorney-General) as the situation whereby only two individuals have held the office of Director in the thirty years the office has existed is totally unacceptable. This is especially so where the actions of the DPP have resulted in a dramatic lack of public confidence in the system. A change would provide for a more dynamic prosecution service if the head of service was younger and rotated more frequently, with an emphasis on regular training in ongoing legal developments both domestically and internationally, recent European Court of Human Rights jurisprudence, and developments in international human rights standards.
The PFC is very concerned that the Director will have overall responsibility for creating the new service. We are concerned that the person charged with creating a prosecution service that heralds a new era for the prosecution process is a person who has operated in a manner that has failed to uphold human rights, and who has failed to achieve the international standards expected of prosecutors. What is needed is a new Chief Prosecutor who can bring vitality and change and who can foster a new ethos that permeates the prosecution service and inspires the staff of the service to perform their functions within the framework of human rights standards, in a manner respectful of the moral and legal obligations their privileged status confers upon them. Public confidence in the new service will not be inspired if the person who headed the office throughout so many controversies is left in office to oversee reform.
These reforms should be implemented as swiftly as practicable, rather than awaiting devolution of criminal justice functions.
Recommendations 60-62 – local offices, and delegation to local offices:
The PFC welcomes the provision in the Implementation Plan for the establishment of local offices, although we note the inclusion of such a provision in the 1972 Order which was never acted upon by the DPP. This system has the potential to work very effectively, and to also increase understanding of the prosecution at a local level. It is essential that there is effective monitoring to prevent regional variations or trends from creating a structure that has different effects in different areas. It is hoped that this will make the prosecution service more accessible to affected parties, and to encourage engagement at community level. It would also provide the potential to improve the flow of information from the prosecution service both to suspects and to victims and/or their families.
Recommendations 62 – expansion of prosecution service:
The PFC is concerned that recruitment had already begun prior to the publication of the Implementation Plan and the Justice Bill. There is concern that proceeding with recruitment prior to the finalisation of the consultation period and the legislation will inhibit the creation of a radically new prosecution service. The Review clearly intended the establishment of a new prosecution service would result in applications being received from those traditionally under-represented in the office, which is unlikely to occur if recruitment takes place now.
Recommendation 65 – identification of training needs:
The Implementation Plan provides for the DPP to identify the training needs of his staff. It is essential that human rights training is provided for all current and future staff of the service. All staff within the prosecution service must receive training on international and domestic human rights standards and on the legal and ethical duties of their office. Public confidence can be increased if the service is seen to be fully versed in the changing nature of society and if they deal with individuals from all sections of society in a fair and equitable manner. It is not acceptable for prosecutors to simply see themselves as the legal arm of the police; instead they must perform their functions in a manner fitting with the central role they play within the criminal justice system.
Recommendation 228 – victims interests:
The PFC welcomes the provision made to include the interests of victims in the codes of practice and plans of all criminal justice agencies. However, it is vital that a uniform definition of ‘victim’ is used in all codes of practice, which is another reason why it would be beneficial to have a centralised system for drawing up these codes (see section above re human rights and guiding principles). It is essential that the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power form the cornerstone of clauses relating to victims in these codes. As was also highlighted above, the needs and requirements of victims should also feature in detail in the training programmes for each of the criminal justice agencies in order to sensitise personnel to the needs of victims.
Recommendations 229 and 230 – Criminal Justice Issues Group sub-group on victims, and victims advocate:
The PFC backed the recommendation to form a sub-group of the Criminal Justice Issues Group which would maintain focus on victims issues, monitoring and evaluating new arrangements, and so on. The Implementation Plan, though, is very vague in its reference to this, and the PFC assert that the recommendation should be implemented in full and as swiftly as possible in a manner which is inclusive of statutory agencies and voluntary groups in order to provide an effective forum for dealing with victims issues.
We are concerned that the recommendation that ‘the possibility of a victims advocate should be considered again in the future if new arrangements on behalf of victims are seen not to be working effectively’ has apparently been ignored in the Implementation Plan. It is vital that this possibility is left open in order that there is a mechanism which address’s victim’s issues in the event that initial arrangements are unsuccessful.
Recommendations 231 – 237 and 242 – information for victims:
These recommendations are of the utmost importance. In the past individuals have felt abandoned by the criminal justice agencies, often not receiving any information whatsoever. This lack of knowledge has not only been unsettling for victims and/or their families, it has also meant people have missed court cases relating to ‘their’ case, inquests into their loved ones deaths, and so on. It is vital that victims/their families are kept informed, if they wish, at every stage of the progression of ‘their’ case. It is vital that this is an open and accessible process, and a process whereby the relevant criminal justice agency at each point during the process is proactive in providing the information (if wished by the victim) rather than the victim having to seek the information.
We are concerned that the Implementation Plan states that ‘the agencies will build on existing practice, identified as necessary to take account of new structures.’ Existing practice has failed victims and it is clear that an overhaul of the whole system of provision of information is required to ensure that victims in future are kept informed in a clear and understandable manner, as well as to fulfil legal obligations arising from the recent Kelly and others v. UK judgement which requires such information to be provided to victims/their families. Furthermore, the recommendation that ‘the provision of information should not be limited to cases that the criminal justice system might classify as ‘serious’’ should be implemented.
In addition, the PFC stresses the need for an alternative mechanism to be established in cases where there is alleged involvement of security force personnel. In these cases, it is not appropriate for the RUC/PSNI to be the agency who will keep the victim/their family informed about developments in a case in which one of their colleagues has been implicated.
Recommendations 238 – 239 – consultation with victims:
We are concerned that the implementation of these recommendations is subject to decisions to be made by the DPP and the RUC/PSNI about how, why, when and to what extent individuals will be consulted about ‘their’ case. This is disturbing given the failure of both agencies to carry out this process in an effective manner in the past. The process to determine these issues should be open to external consultation, for example with victims and with human rights groups, and a firm timetable for this process and its implementation should be set in order to commence the implementation of these new provisions.
Recommendations 240 – 241 – Information to be brought to the attention of the court, and importance of challenging allegations made by the defence:
The PFC is concerned that the British government has totally ignored these recommendations. These are important functions of the prosecutor who has legal and moral obligations to the victim(s) during the case when it is brought to court. It is essential these issues are re-addressed and that provision to implement these recommendations is included in the code of conduct and code of ethics relating to the prosecution service.