Addressing the inextricably linked issues of policing and justice, the Good Friday Agreement 19981 stated:
‘The participants believe that the aims of the criminal justice system are to:
deliver a fair and impartial system of justice to the community;
be responsive to the community’s concerns, and encouraging community involvement where appropriate;
have the confidence of all parts of the community; and
deliver justice effectively and efficiently.’
To ascertain whether or not these aims are currently being met in Northern Ireland, it was decided simultaneous reviews of both policing and the criminal justice system should be established. The terms of reference of the criminal justice review are as follows:
‘Taking account of the aims of the criminal justice system as set out in the Agreement, the review will address the structure, management and resourcing of publicly funded elements of the criminal justice system and will bring forward proposals for future criminal justice arrangements (other than policing and those aspects of the system relating to emergency legislation, which the Government is considering separately) covering such issues as:
the arrangements for making appointments to the judiciary and magistracy, and safeguards for protecting their independence;
the arrangements for the organisation and supervision of the prosecution process, and for safeguarding its independence;
measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system;
mechanisms for addressing law reform;
the scope for structured co-operation between the criminal justice agencies on both parts of the island; and
the structure and organisation of criminal justice functions that might be devolved to an Assembly, including the possibility of establishing a Department of Justice, while safeguarding the essential independence of many of the key functions of this area.
The Government proposes to commence the review as soon as possible, consulting with the political parties and others, including non-governmental expert organisations.’2
The following proposals are based on the premise that the establishment of a Department of Justice is an essential part of any reform of the criminal justice system in Northern Ireland.
1. The DPP’s office should be dissolved and replaced with an independent prosecution service responsible for all prosecutions in Northern Ireland. This would replace the current system whereby the DPP’s office, in practice, processes prosecutions after RUC investigations, and instead the prosecuting authority would have sole responsibility for the initiation and continuation of all criminal procedure. Suggested titles for the new prosecution service include Office of the Independent Prosecutor,3 or perhaps the Public Prosecution Service of Northern Ireland.
2. The new prosecuting authority should have powers of independent investigation as well as independent prosecution. The involvement of a lawyer from the prosecution service from the early stages of the investigation would remove control from the PSNI, while maintaining the traditional adversarial system. 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 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.
3. A Code of Conduct should be drawn up and published based upon international human rights standards and guidelines for prosecuting authorities. Prosecutors and all other staff within the prosecution service should receive training on international and domestic human rights standards and on the legal and ethical duties of their office.
4. The prosecution service should be headed by a Chief Prosecutor, legally qualified with a prescribed number of years experience. This post should be publicly advertised and should not be restricted to applicants from Northern Ireland. The legal staff of the prosecution service should be recruited from as wide a pool of practising lawyers as possible, north and south. Those holding key posts and other lawyers working in the prosecution service must include those who are presently involved in defence work. Recognising that many of the present staff within the Department of the DPP are civil servants drawn from outside the legal profession a strong case can be made for secondment of civil servants from the Republic of Ireland. There should be an independent appointments board within the Department of Justice to appoint, for example, the key figures of the prosecution service.
5. The relationship between the new prosecuting service and the political structures of the day must be radically reformed. At present a government appointee, the Attorney General, has the power to intervene in sensitive cases and thwart prosecutions for reasons of political expediency. This is clearly unacceptable. One option would be to end the ‘temporary provision’ of Article 3(2) of the Prosecution of Offences (Northern Ireland) Order 1972. This would have the effect of removing the Attorney General’s right of superintendence and power of discretion, while leaving the Director accountable to the Attorney General for the due performance of his functions. These arrangements would strike a better balance between giving the DPP independence without completely severing the link with the Attorney General and the accountability that goes with it.
6. The relationship between the prosecution service and the new policing service (PSNI) must be clearly and publicly delineated. The police (even a fundamentally reformed police service) must have no role in prosecutions, in the processing of cases, or the presentations in court. The new prosecution service will have a proactive role in investigation preparation, direction and prosecution of criminal offences; the role of the police will be to assist investigation, not to prosecute. The prosecution of offences will be carried out by the prosecution service through in-house staff and members of the Bar or Solicitors instructed to do so. Each of these two services shall be subject to external monitoring.
7. Internal procedures for taking prosecution decisions must be public and in accordance with international human rights standards. This will help to ensure there is consistency of decision-making that is as transparent as possible and which inspires public confidence.
8. The prosecution service must publish an annual report. This will increase the transparency and the accountability of the prosecution process in Northern Ireland. This report should be distributed to public libraries and made available on demand.
9. Effective measures to combat delay in the prosecution process must be established. This will serve to respect the rights of victims to prompt redress for an offence and those of suspects to either be prosecuted or released swiftly. It will also create an ethos of efficiency within the prosecution service.
10. A meaningful complaints system needs to be established. This system must be effective in order to ensure the new office is held to account if it fails to effectively or efficiently discharge its functions. This will enable violations of the Code of Conduct to be investigated, resolved, and if necessary published.
11. Regional offices of the prosecution service should be established throughout the north of Ireland. This would make the prosecution service accessible to the public, and would also enable staff of the local offices to deal closely with those involved in cases within the region. This could improve the flow of information from the prosecution service to both suspects and to victims and/or their families.
12. All agencies involved in the operation of the criminal justice system should have an obligation to co-operate fully with any investigation launched by the Northern Ireland Human Rights Commission. This would be a positive extension of the ministerial undertaking during the passage of the Northern Ireland Bill through Parliament that the government would fully co-operate with any investigation launched by the Human Rights Commission. In cases where controversy has arisen as a result of the actions of the police service and/or the prosecution service and prosecutions do not take place, such as in the case of Robert Hamill, the Human Rights Commission must be able to get access to the prosecution and RUC/PSNI files to determine what has transpired.
13. The criminal justice system must be accessible and understandable to the general public. The Human Rights Commission has pointed out the need to educate citizens about the workings of the criminal justice system, and their rights and obligations within this. ‘To this end, the CJRG may wish to consider recommending that the new Northern Ireland schools curriculum, which is currently being devised by the CCEA, include education for all school children regarding the criminal justice system and human rights.’4
Summation:
The reforms outlined above reflect the vital need to ensure that real independence is achieved within the prosecution process. In conjunction with this, the proposals provide a framework within which the international standards of fairness, openness and accountability, and efficiency can be met. This, in turn, shall enable a system to develop that can earn the trust and confidence of the public. The proposals will enable the prosecution process to operate in a manner that protects human dignity and promotes human rights as a matter of course, and they also provide the proposed prosecution service with the ability to both administrate and to be seen to be administrating justice.
Prosecutorial glasnost should be encouraged. This will ensure transparency of the decision-making process in current cases. It would also foster a climate within which retrospective action can be carried out for the DPP’s failure to recognise trends appearing in sets of cases throughout the conflict. It has been seen throughout this document that the Director, in taking a narrow interpretation of his remit, played a central role in the implementation of the security agenda and public confidence in the prosecution system could be somewhat restored if this was addressed.
It is hoped that the Criminal Justice Review Group has the courage to propose a radical overhaul of the prosecution process in their proposals for reform of the overall criminal justice system that will embrace the notions underlying the above proposals. Northern Ireland needs a fundamentally new prosecution service, not merely a replica of the old system. It is also essential that there is effective monitoring of the prosecution process. A vital consideration in the present review, as well as general complaints, is that the prosecution service must be compatible with Article 6 ECHR to prevent violation of the Human Rights Act 1998.
1 Cmnd 3883
2 It was originally intended that the Review would be completed by autumn 1999, but the CJRG are now expected to publish their findings in spring 2000.
3 CAJ submission to the CJRG, p23
4 Northern Ireland Human Rights Commission Submission to the Criminal Justice Review Group
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Introduction to director of public prosecutions document