CONTENTS. Executive Summary 2-7. Section 1

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1 CONTENTS Executive Summary 2-7 Section 1 (a) The Role of the Human Rights Commission 8 (b) The Commission s benchmark 9 (c) Human rights at the forefront of the Review 9-10 (d) Omission of emergency legislation and Diplock Courts (e) Bill of Rights (f) Section 75 of the Northern Ireland Act (g) The implementation of the recommendations 14 Section 2 (a) Rights and Principles (b) The Prosecution (c) The Judiciary and the Courts 1. The Judiciary Lay Involvement in Adjudication Courts (d) Restorative and Reparative Justice (e) Juvenile Justice (f) Community Safety 35 (g) Sentences, Prisons and Probation (h) Victims and Witnesses (i) Law Reform 41 (j) Organisation and Research 1. Organisation and Structures Research and Evaluation (h) Structured Co-operation 43 Section 3 Conclusion

2 EXECUTIVE SUMMARY Aims of the criminal justice system The Commission strongly agrees that international human rights standards should inspire the principal aims of the criminal justice system. The aims should: protect individuals against ill-treatment; ensure that fundamental human rights are infringed only where there are objectively justifiable grounds for doing so; protect citizens from crime and fear of crime; ensure an open and inclusive system. Criminal justice agencies The Commission is of the view that the confidence of those who come into contact with the criminal justice system is dependent upon that system being representative of the community in which it is operating. It endorses the recommendation that human rights issues be integrated into training for all those working in criminal justice agencies and it especially endorses the idea of training seminars between police and criminal justice agencies in order to enhance appreciation of the role of lawyers. The Commission thinks that statements of ethics of criminal justice agencies would help make those agencies more transparent. The Commission also supports the recommendations in respect of public understanding and accountability which aim to make the system more accessible and less intimidating. The prosecution system The Commission endorses the recommendations that: an independent prosecution service should be established and enshrined by statute; political accountability of the prosecution service should rest with an Attorney- General who has only a consultative role; the head of the prosecution service, in order to be publicly accountable, has a duty to produce an annual report, a code of conduct and a code of ethics. 2

3 The Commission would also wish the prosecution service in Northern Ireland to be subject to inspection in the same way as the Crown Prosecution Service in England and Wales. The Commission endorses the recommendation that the new Prosecution Service should undertake to prosecute cases currently prosecuted by the police on the basis that investigation, prosecution and adjudication must be separate in order to provide an assurance of objective, dispassionate decision-making. The nature of the relationship between the police and prosecution service must be defined and independence of prosecution decisions safeguarded. Recommendation 23 therefore does not go far enough. The Commission endorses the recommendation that the head of the prosecution service should have the power to prompt an investigation by the police. The Commission deems it necessary for the prosecution service to co-operate with the police, the community and other agencies in order to arrange diversion options in local areas. We consider that this will allow diversionary initiatives to develop consistently throughout Northern Ireland. The Commission is of the view that prosecutorial fines should be imposed only in appropriate less serious cases and be subject to the overriding choice of the defendant to proceed to court. The Commission endorses the recommendation that as full an explanation as is possible should be given by the prosecutor as to why a prosecution was or was not commenced. We are also of the view that the prosecution service should be more accountable than at present to victims. The judiciary The Commission endorses recommendation 67 that Westminster legislation should enshrine the independence of the judiciary. It is of the view that, as enforcement of a Bill of Rights will probably be the task of the judiciary, their independence must be expressly safeguarded. The Commission at present endorses the suggestion that a special court should be created to interpret the forthcoming Bill of Rights for Northern Ireland. The 3

4 Commission agrees that there should be a strategy of public education and information about the courts. The Commission endorses the recommendation that a Judicial Appointments Commission should be established to organise and oversee the process of appointing judges. Merit must be the key criterion in determining appointments. The Judicial Appointments Commission should be empowered to appoint judges without recourse to the First and Deputy First Ministers. The Commission is concerned that the present system for making part-time judicial appointments may not be seen to be fair and impartial. The Commission believes that judicial education has become almost a prerequisite for an effective judiciary. It endorses the recommendation that training be managed by judges for judges and is of the view that the Judicial Studies Board should be given a statutory basis. Lay involvement in the criminal justice system should be continued in an informal capacity and its quality and impact should be monitored. Nominations to become lay magistrates should be open to the private sector, voluntary and community organisations and churches and local groups. The appointment of lay magistrates must be open and comply with equal opportunity practice. It is absolutely essential that lay magistrates be appropriately trained in line with United Nations Basic Principles on the Independence of the Judiciary. Restorative justice programmes Restorative justice approaches should be developed for juveniles, young adults and adults and conferencing should be used to enable participants to draw up a plan to be approved by the court. The Commission deems it essential for participants in these conferences to receive training in human rights, mediation and dispute resolution. Conference co-ordinators must be independent and we agree that any link with government would jeopardise the perception of independence and impartiality. Pre- 4

5 sentence reports are necessary to allow the court to determine whether a restorative approach is appropriate. The Commission is of the view that the role of the court in approving an offender's plan is of great importance in ensuring that a competent authority is seen to be making decisions which will effect the rights of the offender. Likewise, a standardised code of conduct will go some way towards ensuring the universality of treatment for offenders involved in restorative justice programmes. A fully integrated approach to restorative justice will avoid problems of marginalisation and subordination and will ensure that individuals have a direct remedy under the Human Rights Act. Links should therefore be established between criminal justice agencies and community restorative justice schemes. Young offenders The Commission endorses the recommendation that 17-year-olds should be brought within the jurisdiction of the Youth Courts. The Commission is concerned that 17-yearold offenders who take part in the regime in a Young Offenders Centre may currently mix with 18 to 24-year-old offenders, contrary to Article 10(3) of the UN's International Covenant on Civil and Political Rights and rule 26.3 of the Beijing Rules. The Commission endorses the introduction of Community Service Orders for offenders under 16 and the introduction of Reparation Orders. The use of restorative and reparative plans have the potential to create imaginative, appropriate and proportionate disposals for young offenders. The Commission would encourage the development of communitybased correction and services. Release of prisoners The Commission endorses the recommendation that the probation and prison services should work together to prepare release packages for prisoners, providing aftercare, support and supervision. This would be in line with the European Prison Rules. The 5

6 Commission also agrees that the Life Sentence Review Board should be replaced by an independent body made up of psychiatrists, psychologists, criminologists and judges. A human rights expert should be included in this body. The Commission notes the recommendation in respect of electronic monitoring and is of the view that such practice, if adopted, would raise issues of fundamental human rights concern. The Commission welcomes the protocol currently being drafted by the Prison Service, the RUC and the DPP which aims to determine whether offences committed in prison should be dealt with as a matter of prison discipline or referred to the Prosecution Service. Victims The Commission endorses recommendation 228 that the interests of victims should feature in the codes of practice and plans of all criminal justice organisations and in the overall criminal justice plan. All codes of practice must have a uniform definition of victim". The Commission agrees that a subgroup of the Criminal Justice Issues Group should be created to monitor and evaluate new arrangements for victims. In addition the Commission recommends that provision should be made for victims with special needs and that links should be established between all groups in the criminal justice system with social services and other personnel to receive training in order to sensitise them to the needs of victims. The Commission is strongly of the view that it must not be the responsibility of the victim to determine the sentence of the offender. But it agrees that compensation and restitution orders should be used more readily as a form of disposal. The commencement of the Criminal Evidence (NI) order 1999 should indeed have a positive impact on addressing the needs of victims who are vulnerable or intimidated. Witnesses The Commission endorses the recommendation that witness support schemes should be made available at all Crown Courts and Magistrates' Courts. These schemes should be 6

7 available in appeal courts, restorative justice settings, coroner s courts and in relevant disciplinary proceedings. Design and accountability of the system The design of the criminal justice system should be such as to ensure that the state can fulfil its obligations to protect the rights of citizens and that there is no delay. The Commission is of the view that a Department of Justice, an independent Criminal Justice Inspectorate and Departmental Committees will provide a better means of holding the criminal justice system to account. The Commission endorses the recommendation that legislation should be enacted setting out statutory time limits. 7

8 1. Introductory Matters (a) The Role of the Human Rights Commission Section 69 of the Northern Ireland Act 1998 sets out the duties of the Northern Ireland Human Rights Commission (hereinafter referred to as the Commission) as being as follows: to review the adequacy and effectiveness in Northern Ireland of law and practice relating to human rights; to advise the Secretary of State on measures which ought to be taken to protect human rights; to advise the Northern Ireland Assembly whether a Bill is compatible with human rights; to promote understanding and awareness of the importance of human rights in Northern Ireland; and to provide advice to the Secretary of State on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights. Section 69(11)(b) defines human rights as "including Convention rights". The Commission s powers are also set out in section 69: to give assistance to individuals who apply to it for help in relation to proceedings involving law or practice concerning the protection of human rights; to bring proceedings involving law or practice concerning the protection of human rights; to conduct such investigations as it considers necessary or expedient for the purpose of exercising its other functions; and to publish its advice and the outcome of its research and investigations. 8

9 (b) The Commission s Benchmarks The Commission will work vigorously and independently to ensure that the human rights of everyone in Northern Ireland are fully and firmly protected in law, policy and practice. To that end the Commission will measure law, policy and practice in Northern Ireland against internationally accepted rules and principles for the protection of human rights and will exercise to the full the functions conferred upon it to ensure that those rules and principles are promoted, adopted and applied throughout Northern Ireland. 1 The Commission s Strategic Plan for states that the rights of victims of violence, children, ex-prisoners and persons whose rights have allegedly been adversely affected by the criminal justice system are particularly worthy of protection through the Commission s casework function. The plan goes on to state that the Commission s concern will always be the need for the state to adhere to internationally accepted standards on human rights. It is with this position in mind that the Commission is responding to the recommendations of the Review of the Criminal Justice System published in March (c) Human rights at the forefront of the Review The Commission was pleased to note the number of references in the Review and in the accompanying Research Reports to international human rights standards. The Commission welcomes especially Research Report 14: Human Rights Standards and Criminal Justice, by Stephen Livingstone and Jonathan Doak, which clearly identifies international human rights standards and their impact on different stages of the criminal justice process including pre-trial, trial and post-conviction. Setting out the text of human rights documents in appendices was informative and constructive. 1 NIHRC Strategic Plan : Our Mission Statement, page 11. 9

10 The Commission considers the inclusion of a Human rights Background at the beginning of each chapter of the Review to be useful. It is the Commission s view that this helps set the appropriate context for consideration of each topic and clarifies that international human rights standards are paramount in devising an effective and efficient criminal justice system. The Commission welcomed the reliance upon not only hard law standards but also "soft law" declarations and guidelines in the Review's recommendations. The Commission endorses the approach advocated in Research Report 17: Juvenile Crime and Justice regarding reliance upon non-binding international human rights instruments. This Research Report advocates embracing and promoting leading international law and conventions which, although not binding, put forward positive directions and basic standards to be built upon. 2 (d) Omission of emergency legislation and Diplock Courts The Commission remains concerned that the operation of Diplock Courts and of emergency legislation was not included in the terms of reference of the Review. The Commission is of the view that emergency legislation and Diplock Courts have contaminated the ordinary criminal process. We agree with a concern expressed in Research Report 18 Designing Criminal Justice: The Northern Ireland System In Comparative Perspective, by Neil Walker and Mark Telford, who comment that: the emergency powers have influenced due process in the ordinary system in several ways. Measures intended for the terrorist context have leaked into the ordinary system. This occurs either because boundaries have not been tightly drawn or simply because emergency powers become the norm. They continue that: 2 Research Report 17: Juvenile Crime and Justice, by David O Mahony and Ronan Deazley, Chapter 4, pages

11 one may also have to make allowance for the influence the presence of the powers may have had on what key actors in the system (mainly the police) deem to be acceptable methods of dealing with people, and the possible impact the existence of draconian powers of detention and interrogation may have had on the extent to which the public perceive that system can treat people fairly. 3 The Commission acknowledges that a mechanism is in place to conduct annual reviews of emergency legislation but consider this review mechanism to be insufficient. We retain concerns regarding the content of the Terrorism Act We are also concerned at the outcome of the recently published Review of Diplock Courts. The Commission is of the view that only after a comprehensive review of these additional aspects of the criminal justice system can the recommendations in the present Review be entirely validated. (e) A Bill of Rights for Northern Ireland The Commission is currently in the process of consulting in respect of a Bill of Rights for Northern Ireland, further to its statutory duty under section 69(7) of the Northern Ireland Act 1998 and the Good Friday Agreement. The Commission is of the opinion that most of the recommendations in the Criminal Justice Review are best dealt with in ordinary legislation or by administrative action. But there are a number of general principles which might be considered for inclusion in a Bill of Rights. In respect of the recommendation that there be established a new prosecution service which is independent; the Commission suggests that such independence be guaranteed in a Bill of Rights. 3 Research Report 18: Designing Criminal Justice: The Northern Ireland System in Comparative Perspective, by Neil Walker and Mark Telford, Chapter 4: Equity at page

12 The Review recommends that a Judicial Appointments Commission be created and that the independence of the judiciary be safeguarded. The Commission would endorse the inclusion of provisions regarding an independent judiciary in a Bill of Rights. The Commission welcomes the range of disposals available for offenders and the recommendation to implement a restorative justice scheme. The Commission will, during its consultation process, assess whether a Bill of Rights should include safeguards for disposals and diversion. The Commission also considers that the rights of victims and of prisoners should be included in a Bill of Rights. The Commission is of the view that a Bill of Rights should specify a person s rights within the criminal justice system. The Commission welcomes the references in both the Research Reports and the Review that guiding principles, values and key objectives will be formulated against which the criminal justice system can be measured. 4 (f) Section 75 of the Northern Ireland Act 1998 The Commission found no reference within the Review to the duties placed on public authorities by section 75 of the Northern Ireland Act The Commission wishes to stress the importance of all bodies that work within the criminal justice arena complying with the section 75 duty to have regard to the need to promote equality of Opportunity, including the Office of the Director of Public Prosecutions, the Northern Ireland Court Service, the Lord Chancellor's Department and the Office of the Attorney- General. The Commission considers that the Secretary of State should issue an order under section 75 in order to designate the Police Authority of Northern Ireland and the 12

13 Royal Ulster Constabulary as public authorities for the purpose of section 75. The Commission endorses the view of the Equality Commission in respect of the importance of mainstreaming equality: experience in Northern Ireland and elsewhere has shown that questions of equality may easily become sidelined in organisations. Effective attention to mainstreaming addresses this problem, by requiring all public authorities to engage directly with equality issues at an early stage. 5 The Commission notes the findings in Research Report 13 Community Safety: Partnerships and Local Government, by Dermot Feenan, that : most bodies surveyed have no formal procedures for securing equality of opportunity or fairness of treatment in their community safety work These findings are of concern and show that the spirit of the Belfast Agreement, New TSN and PAFT are not influencing the procedures, structures and substance of community safety partnership activity in Northern Ireland. 6 The Commission would stress that the section75 duty is of utmost importance in the criminal justice system given the involvement of vulnerable groups, victims, witnesses and individuals. We think it is important that police operations (such as arrests), prosecutions, convictions and sentencing decisions are carefully monitored by reference to variables such as race, gender, religion, political belief and disability. 4 For examples of these references note Research Report 16: Criminal Prosecution Procedure and Practice: International Perspectives, at para. 5.41, page 136, and Research Report 17: Juvenile Crime and Justice, Chapter 6, page Guide to the Statutory Duties- A guide to the implementation of the statutory duties on public authorities arising from section 75 of the Northern Ireland Act 1998, para. 1.5, page 6, Equality Commission for Northern Ireland, April

14 (g) No need to wait for criminal justice to be devolved An important general point is that the Commission sees no reason why most, if not all, of the recommendations contained in the Review should not be implemented as soon as possible. It certainly sees no justification whatsoever in delaying their implementation until criminal justice becomes a devolved responsibility. If the recommendations are sound - and we think most of them are - they deserve to be implemented whichever government has the responsibility for criminal justice in this part of the world. We would urge the Northern Ireland Office to put in train immediately a plan for implementing the Review's recommendations, especially those relating to the Prosecution Service and the judiciary. 2. Responses to Recommendations In this section the Commission will address the recommendations of the Review on a chapter by chapter basis, namely: 1. Rights and Principles 7. Sentences, Prisons and Probation 2. The Prosecution 8. Victims and Witnesses 3. The Judiciary and Courts 9. Law Reform 4. Restorative and Reparative Justice 10. Organisation and Research 5. Juvenile Justice 11. Structured Co-operation 6. Community Safety The Commission will outline relevant international standards of human rights and focus primarily on those recommendations which either conflict or potentially conflict with these standards. 6 Research Report 13: Community Safety: Partnerships and Local Government, by Dermot Feenan, Chapter 4: Equity and Fairness, at page

15 The Commission acknowledges that international standards have been considered by the Review, but the Commission proposes to assess the extent to which the recommendations actually reflect those standards. (a) Rights and Principles The Commission strongly endorses Recommendation 1: human rights issues should become a permanent and integral part of training programmes for all those working in criminal justice agencies, the legal professions and relevant parts of the voluntary sector. 7 The Commission believes that this recognises the real need for human rights and dignity to be the core values of the criminal justice system. 8 Research Report 14 suggests that international human rights standards are focused at the operational rather than the structural level 9. This means that they deal with the treatment to be expected by those coming into contact with the criminal justice agencies. The Commission believes that international human rights standards should inspire the principal aims of the criminal justice system. The Commission endorses the aims set out by the Criminal Justice Board 10 as a good model for the criminal justice system. 11 The aims reflect the themes which underpin international standards of human rights: to protect individuals against ill treatment and to ensure that fundamental human rights such as liberty be infringed only where there are objective grounds. Furthermore the aims reflect the need for a criminal justice system to protect citizens by working in co-operation to reduce crime and the fear of crime. The aim to make the system open and inclusive reflects the need to have regard to victims in accordance with international standards. The Commission wishes to see the legislation 7 Recommendation 1, para at page 34 of the Review. 8 Ibid. 9 Livingstone and Doak, Research Report 14: Human Rights Standards and Criminal Justice, at page The Criminal Justice Board is an inter-agency strategic body consisting of the directors and chief officers of the main statutory agencies involved in delivering criminal justice. 11 Recommendation 2, para.3.28 at pages 34 and 35 of the Review. 15

16 which implements the Review's recommendations making specific reference to a variety of international human rights standards and requiring criminal justice agencies to abide by them. The Commission can provide details of these standards on request. The Commission welcomes Recommendations 4, 5 and 6 in respect of equity monitoring of those who work within the criminal justice system. The Review recommends that those who are employed in criminal justice agencies be reflective of the community in which they are operating. The Commission is of the view that the confidence of those who come into contact with the criminal justice system is dependent upon that system being representative of the community in which it is operating. The requirements of section 75 of the Northern Ireland Act 1998, if complied with, will go some way towards ensuring a representative workforce. Our view is based on fundamental human rights provisions, namely Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant of Civil and Political Rights. We are particularly anxious that the judiciary in Northern Ireland should be more proportionately representative of the unionist and nationalist communities and that a much greater number of women should be appointed to the bench. In respect of Recommendation 7, the Commission endorses the view that those working with the criminal justice system should be independent and impartial 12 and recognises that internationally agreed rights of expression and rights of association do not call that impartiality or independence into question. The Commission sees statements of ethics for criminal justice agencies to be a constructive mechanism for making those agencies much more transparent than they currently are. The Commission endorses the view that training seminars should be organised to enable the police and other criminal justice agencies to appreciate the role of lawyers. The Commission is of the view that such training should be commenced as soon as possible and would suggest that the police and agencies incorporate the training within their 12 Basic Principles of Independence of Judiciary, Article 8; Basic Principles on the Role of Lawyers, Article

17 current training arrangements. The Commission suggest that the Bar Council and the Law Society should liaise with the police and other agencies to formulate a programme of training seminars. The Commission is concerned that fundamental human rights standards protected by the European Convention on Human Rights are being eroded. 13 The Commission endorses the recommendation that research be carried out in respect of the impact of PACE at the stage of police questioning. The Commission recommends that this research should begin as soon as possible and should not be limited to the police but that it be extended to cover all prosecuting authorities. The Commission endorses all the recommendations in respect of public understanding and accountability which aim to make the criminal justice system more accessible and less intimidating. It also endorses the recommendation regarding provision of information for witnesses, victims, children, minority groups and defendants and the need for complaints mechanisms which are easily accessible and independent to be established. (b) The Prosecution A number of international instruments exist which are specific to the role and duties of prosecutors. 14 The recommendations on prosecutors can and should be evaluated against the benchmark of these instruments In Murray v UK (1996) 22 EHRR 29 the right to silence and adverse inferences were considered. It was recognised that the right to remain silent was a fundamental human right at the heart of the notion of a fair trial under Article 6. For a discussion see page 45 of the Review, para See too Magee v UK and Averill v UK (decisions of the European Court of Human Rights of 6 June 2000). 14 The UN Guidelines on the Role of Prosecutors 1990 and the Standards and Statement of Essential Duties and Rights of Prosecutors adopted by the International Association of Prosecutors. 15 The Human Rights Background on pages of the Review at paras outlines the assistance these instruments can give. 17

18 The Commission endorses the recommendation that an independent prosecution authority should be created to be responsible for prosecuting criminal cases, including those currently undertaken by the police. In particular the Commission endorses the reasoning of paragraph 4.127: public confidence in the future of the criminal justice system is of critical importance. We believe that the independence of key parts of the process from each other, and from influence by government, is central to this. Investigation, prosecution and adjudication are the components of the process the clear separation of such functions provides an assurance of objective, dispassionate decision making, and of checks and balances. 16 The Commission supports the recommendation that the head of the prosecution service should have the power to prompt an investigation by the police, that the prosecutor may refer a case to the Police Ombudsman for investigation and that a prosecutor has a duty to ensure that any allegation of malpractice by the police be investigated. It is internationally accepted that to ensure fairness and the effectiveness of prosecution, prosecutors shall strive to co-operate with the police. 17 Consequently the Commission endorses recommendation 22. The Commission is of the view, moreover, that the nature of the relationship between the police and the prosecutor should be more exactly defined. The Commission would recommend that guidelines should be drafted to set out at what stage during an investigation the prosecutor should give advice to the police, and the nature of that advice. Recommendation 23 says that the prosecutor should advise on prosecutorial matters. The Commission considers that this is too vague. Recommendation 23 recommends that the Prosecution Service should consider the possibility of arranging for another prosecutor within the service to take the decision whether or not to prosecute. The Commission is of the view that to merely consider that 16 Para at page 84 of the Review. 17 UN Guidelines on the Role of Prosecutors 1990, at para

19 possibility does not go far enough. It is our view that a positive duty should be imposed upon the Prosecution Service to appoint a different prosecutor to the case. This will safeguard the independence of prosecution decisions. The Commission is of the view that the Prosecution Service must be structured in such a way so as to ensure that, where advice is given to the police by a prosecutor, the file can be reallocated to a different prosecutor who can act independently. The Commission is also strongly of the view that government officers, such as the Attorney-General, should have no role whatsoever in deciding whether or not prosecutions should proceed. The responsibility should be entirely that of the Prosecution Service. Even in situations where national security is supposedly at stake, a government official should not be involved. The judiciary ought to be entrusted with the power to decide during judicial review proceedings whether a prosecutor's decision taken on grounds of national security is defensible or not. The Commission endorses recommendation 32 to simplify the procedures for transferring cases to the Crown Court. This will comply with the requirements of international standards that recommend a person be tried within a reasonable time 18 and without undue delay. 19 The Commission endorses the recommendation that prosecutors consider the diversion option. This is in line with international standards. 20 The Commission welcomes the necessity for the prosecution to co-operate with police, community and other agencies to arrange diversion options in local areas. The Commission considers that this will allow diversionary initiatives to develop consistently throughout Northern Ireland. The Commission is of the view that criminal justice agencies including the Prosecution Service should develop links and refer cases to Community Restorative Justice schemes. 18 Article 6, European Convention on Human Rights. 19 Article 14(3)( c) International Convention for Civil and Political Rights. 20 UN Guidelines for the Role of Prosecutors 1990, paras Alternatives to Prosecution. 19

20 In respect of the introduction of the prosecutorial fine the Commission is of the view that international human rights standards allow prosecutors to divert cases from the formal justice system as long as full respect for rights of suspects and victims be taken into account. 21 The Commission would recommend that such fines only be imposed in appropriate less serious cases and be subject to the overriding choice of the alleged defendant to proceed to court. The Review recommends that the Attorney General should have a consultative input into the running of the Prosecution Service, following the procedure adopted in the Republic of Ireland and in Scotland. The Commission endorses the consultative role of the Attorney General. The Commission is of the view that guidelines should be drafted to determine what the Attorney General is to consult upon and the extent of his or her role. The Review recommends that local institutions should be responsible for the Prosecution Service until the appointment of an Attorney General for Northern Ireland. The Commission is concerned that local institutions is not defined and the powers that they would have are not dealt with; this conflicts with the requirement of an independent Prosecution Service. The Review sets out views on how a Prosecution Service can be accountable yet retain independence. The Commission endorses the recommendations that: the head of the Prosecution Service should have a statutory duty to produce an annual report, a code of conduct and a code of ethics, to be publicly accountable; the head of the Prosecution Service is accountable to the appropriate Assembly Committee for financial and administrative matters; political accountability should rest with an Attorney-General who has a consultative role; 21 Ibid. at para

21 legislation should enshrine the absolute independence of the prosecutor. More generally, the Commission believes that the Prosecution Service should be obliged to disclose its reasons for prosecuting, or for not prosecuting, in relation to a particular offence. Earlier this year we were disappointed with the decision of Mr Justice Gillen in Ex parte Adams, where the DPP's duty to give reasons was carefully scrutinised. We are of the view that a Prosecution Service has no need to be as secretive about its decisionmaking as the present Office of the DPP and that, in those cases where issues of confidentiality are particularly important, a statutory body such as the Human Rights Commission should be given access to the reasons for the Prosecution Service's decisions. Such limited disclosure is the minimum necessary to reassure society that decisions are being taken without any bias. We consider that prosecutors should have guidelines to determine what constitutes a person with a proper and legitimate interest in a case 22 and that this should include the victim(s) and the victim('s) family. The Commission wishes the Prosecution Service to be more accountable than at present to victims and to have regard to their concerns. The Commission endorses the recommendation that a code of ethics be published based on the standards set out in the UN Guidelines on the Role of Prosecutors. The Commission recommends that a clause be included in the code of ethics stating what citizens can expect from a Prosecution Service. Such clause should state the expectation that a prosecutor: be an individual of integrity and ability; be appropriately trained; carry out their duties fairly, consistently, expeditiously, objectively and impartially; protect the public interest; respect and protect human dignity and uphold human rights; keep matters in their possession confidential; consider the views and concerns of victims; and 21

22 consider alternatives to prosecution. 23 The UN Guidelines provide that prosecutors shall be individuals of integrity and ability with appropriate training and qualifications. 24 The Commission endorses the recommendations in respect of recruitment of new staff and especially endorses the recommendation that training needs be identified which should be in line with UN Guideline 2(b): Prosecutors should have appropriate education and training and be aware of ideals and ethical duties of their office, of constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognised by national and international law. The Commission considers that in formulating a new Prosecution Service, disciplinary proceedings of prosecutors are required to be addressed and should be in line with UN Guidelines 21 and 22. The Review Group did not make any recommendations in respect of this matter. The Commission endorses recommendations in respect of the structure of the Prosecution Service. (c) The Judiciary and the Courts The Judiciary The Human Rights Background 25 refers to international human rights instruments relevant to the judiciary. Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights provide that 22 Recommendation 49, at para of the Review at page These are all based on the UN Guidelines for the Role of Prosecutors. 24 UN Guidelines for the Role of Prosecutors 1990, paras. 1-2: Selection and Training. 25 The Review at page , paras

23 everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal. Other specific documents include the UN Basic Principles on the Independence of the Judiciary, the Siracusa Principles and the Procedures for the Effective Implementation of the Basic Principles of the Independence of the Judiciary. These instruments can be used as a benchmark against which to view the recommendations. The Commission endorses recommendation 67 that Westminster legislation enshrine the independence of the judiciary and that a duty be placed on government to uphold and protect that independence. The Commission is of the view that the County Court Act (NI) 1959, the Magistrates Courts Act (NI) 1964 and the Judicature NI Act 1978 could be amended. This is in line with the UN Basic Principles on the Independence of the Judiciary. 26 The Commission is of the view that as the enforcement of a Bill of Rights will probably be the task of the judiciary their independence must be safeguarded. 27 The Commission endorses the recommendation that although merit must be the key criterion in determining appointments to the judiciary, a programme of action should be commenced to develop a judiciary that is reflective of Northern Ireland society in terms of community background and gender. 28 Nazreen Bawa states: for a judge to succeed, not only must she or he be independent and impartial, but also representative in the sense that the judge must belong to the community over which she or he is to pass judgement. Such representivity is a prerequisite for legitimacy and is a vital part of the new constitutional state. 29 The Commission is of the view that in Northern Ireland it would be difficult to have a judiciary which is representative. In Northern Ireland judges sit alone in most criminal 26 UN Basic Principles on the Independence of the Judiciary, at paras For a discussion on this point see A Judiciary In The Midst of Transformation by Nazreen Bawa, SACHR February 1999, at pages 1 and Para of the Review states that ECHR is a living instrument to be interpreted in the light of present day conditions and changing social values, this makes it increasingly important that the judiciary should be as reflective as possible of society in its diversity. 29 Per Nazreen Bawa, ibid. at page

24 trials and it would be impracticable to ensure that a judge is representative in all cases. The Commission acknowledges that anyone exercising judicial functions in Northern Ireland must act impartially. The Commission endorses the recommendation that a Judicial Appointments Commission be established which comprises members from all tiers of the judiciary, Law Society, Bar Council and lay members. The Commission is of the view that lay members should include legal academics, officials from criminal justice agencies and human rights experts and that they be appointed in accordance with the Nolan procedures. The Commission endorses the role of the Judicial Appointments Commission in organising, overseeing and recommending judicial appointments. The Commission is of the view that a Judicial Appointments Commission should have a defined role and therefore guidelines will be required to set out how a Judicial appointments Commission should oversee and organise the appointment of judiciary. The Commission is of the view that the Judicial Appointments Commission should work together with representatives from the Law Society and Bar to encourage applications for judicial appointments. The criteria for appointment as a judge should be accessible to the general public and much less importance should be given to experience as a senior barrister than is at present the case - in this way more women and members of other historically disadvantaged groups stand a better chance of being appointed. The Peach Report provides for the establishment of a Commissioner for Judicial appointments in England and Wales. The role of the Commissioner will provide an Ombudsman facility for disappointed candidates and organisations, an ongoing audit on a sample basis of current procedures, and will make recommendations to the Lord Chancellor on improvements in process which it believes should be made. 30 The report goes on to recommend that a Commission for Judicial Appointments be established whose functions it will be to: 24

25 investigate individual grievances and complaints relating to the application of the appointments system; receive comments from individuals and representative bodies about the process of appointment; investigate any matter in the appointments process which the Lord Chancellor wishes to have examined. 31 The Commission is of the view that a Judicial Appointments Commission should have the same functions as envisaged by the Peach Report. In addition the Commission raises the following concerns: 1) The Commission is of the view that if a Judicial Appointments Commission can bind the First and Deputy First Ministers, in a situation where they disagree on the person recommended by the Judicial Appointments Commission; then there is an argument to suggest that a Judicial Appointments Commission be empowered to take the decision to recommend and appoint without recourse to the Ministers in the first place. This would insulate the judiciary and their appointments from the political arena and safeguard legitimacy in the eyes of the community. 2) The First and Deputy First Ministers have to make a decision as to who to recommend and who to appoint. It is unclear in the review what information will be given by the Judicial Appointments Commission to the Ministers. The Commission suggests that any report of the selection process should contain an assessment of all those considered for the position and reasons why a recommendation has been made for a particular individual. It is only with this knowledge that a reasoned decision can be taken. 30 An Independent Scrutiny of the Appointment Processes of Judges and Queen s Counsel in England and Wales, A Report to the Lord Chancellor by Sir Leonard Peach, December 1999, at pages 3-4 and Ibid. 25

26 3) The Commission is of the view that the current arrangements for dismissing judiciary are impracticable and outdated. The Lord Chief Justice, Lord Justices of Appeal and High Court Judges can only be dismissed by way of a Motion in both Houses of Parliament. 32 County Court judges and Resident Magistrates can only be dismissed by the Lord Chancellor. 33 The Commission recommends that dismissing a judge is a function which should be held by a Judicial Appointments Commission. The Commission endorses the establishment and role of a Judicial Appointments Unit to assist the Judicial Appointments Commission. 34 In respect of the appointment of part time judiciary, the Commission is concerned that such appointments may not be seen to be fair and impartial as they must be in order comply with international human rights standards. 35 The Commission agrees with Nazreen Bawa that: judicial education has become almost a prerequisite for an effective judiciary. 36 Paragraph of the Review states: increasing complexity of legislation, the incorporation of the European Convention and the rapidly changing political and social context in which judges operate all point to the need not just for induction training but for regular refresher exercises. New principles of interpretation arising out of human rights legislation have important training implications and there is a need for training in the policy and social context of legislation as well as in judicial technique. The Commission endorses the recommendation, in line with the view of Sir Leonard Peach, 37 that training be managed by judges for judges and include academic input. The 32 Section 13 of the Judicature (NI) Act Section 105 of the County Court Act (NI) 1959 and section 11 of the Magistrates' Court Act (NI) A list of this Unit s functions is set out in recommendation 86 at para of the Review. 35 The Commission awaits a policy decision in light of Starr v Procurator Fiscal, 11 November 1999, where it was held that temporary Sheriffs could not be seen to be fair and impartial as they relied on political decisions to be re-appointed every year. 26

27 Commission considers that whilst the Judicial Studies Board has been successful in training judges it may be an appropriate opportunity to give legislative effect to the role of a Judicial Studies Board. The Board should continue to be responsible for the delivery of training to judges and also change management required by the Civil Justice Reforms and the Criminal Justice recommendations. 38 Lay Involvement in Adjudication Lay persons within the criminal justice system carry out judicial functions 39 and therefore are subject to the same international human rights standards which apply to the judiciary: to be competent independent and impartial. The UN Basic Principles on the Independence of the Judiciary likewise apply to all judges who have appropriate training or qualifications in law. 40 The Commission endorses the recommendation that lay involvement should be continued in an informal capacity and that its quality and impact be monitored. The Commission is of the view that this should make the system more responsive to community concerns and enhance confidence in the criminal justice system. The Commission would suggest that the appointment of lay magistrates be open and comply with equal opportunity practice. The Commission considers it to be absolutely essential that lay magistrates be appropriately trained in line with UN Basic Principles. The Commission noted the suggestion in Research Report 11 that the Northern Ireland Human Rights Commission might be expected to keep the magistracy aware of broader policy concerns and 36 Per Nazreen Bawa, ibid. at page Ibid. at pages Ibid. at pages The Review at para sets out these functions: they affect the liberty, privacy and other human rights of the individual, require the exercise of judicial discretion and involve a degree of oversight of the processes employed by the police and other investigating agencies. At page For a useful discussion refer to the Human Rights Background at paras of the Review at page

28 developments in the field of human rights. 41 The Commission would welcome any opportunity to inform lay participants in the criminal justice system but considers that were the Commission to take on such a role, a significant increase in its resources would be required. The Commission agrees that nominations to become lay magistrates should be open to the private sector, voluntary and community organisations, churches and local groups, however the Commission wishes to stress the importance of having a selection procedure which ensures that applicants would be suitable. The Commission welcomes paragraph 7.43: it would be inimical to human rights standards requiring a fair, impartial and independent tribunal, if there were any suggestion that lay adjudicators were on the bench to represent particular groups or to bring personal or sectional perspectives to bear in dealing with individual cases. There is a fine dividing line between bringing the experience and wisdom of everyday life to the bench and allowing extraneous factors to interfere with objectivity of judgement. 42 The Commission endorses the recommendation that aspects of jury trial and measures to prevent intimidation of jurors be reviewed. Courts The Human Rights Background 43 identifies the internationally accepted principles which need to be taken into account when considering the way courts operate in Northern Ireland, including Article 6 of the European Convention on Human Rights and the UN Declarations of Basic Principles of Justice for Victims of Crime and Abuse of Power. 41 Research Report 11: Lay Involvement in Adjudication, by Sean Doran and Ruth Glenn; para. 5.14, at page 52: Options for the Future. 42 Para of the Review at page Paras , at page 170 of the Review. 28