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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 319-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE
DEVOLUTION OF POLICING AND JUSTICE
Committee
Room 30, Stormont,
MR JIM SCHOLES, MR DAVID LAVERY, DR MICHAEL MACQUIRE and MR BRENDAN McGUIGAN Evidence heard in Public Questions 71 - 109
USE OF THE TRANSCRIPT
Oral Evidence Taken
before the on Members present Sir Patrick Cormack, in the Chair Rosie Cooper Mr John Grogan Mr Stephen Hepburn Lady Hermon Mr Denis Murphy Stephen Pound David Simpson ________________ Witnesses: Mr Jim Scholes, Acting Director of Public Prosecution Service, Mr David Lavery, Director, Northern Ireland Court Service; Dr Michael Maguire, Chief Inspector, Criminal Justice Inspectorate, and Mr Brendan McGuigan, Deputy Chief Inspector, Criminal Justice Inspectorate, gave evidence. Q71 Chairman: Mr Lavery, could I welcome you and your colleagues and say how grateful we are to you for coming. Could I also say at the very beginning how sorry we are that Sir Alasdair is not well enough to be here today. I would ask you, Mr Scholes, if you would convey the Committee's unanimous good wishes because we have enjoyed taking evidence from him in the past and he has been extremely helpful to the Committee in the information that he has supplied and the way that he has responded to our queries. We hope that he is soon very much better. This is almost certainly the last major visit of the Committee to Belfast before the General Election and we have determined to make our final report to Parliament a report on the progress over the last five years towards devolution. Of course, we do not know at this stage whether we shall be able to comment on the final stage of detail, although we hope we will. We would like to explore a few of the aspects of this with you four gentlemen this afternoon. Could I ask you first of all if you could introduce yourselves and if you wish to make an opening statement, Mr Lavery or Mr Scholes, or indeed any of you, that is fine. We have about three-quarters of an hour and then a quarter of an hour, if you are agreeable, in private session. Could I ask you to introduce yourselves. Dr Maguire: Michael Maguire, Chief
Inspector of the Criminal Justice Inspectorate in Mr McGuigan: Brendan McGuigan, Deputy Chief Inspector of the Criminal Justice Inspectorate. Mr Lavery: I am David Lavery, Director
of the Mr Scholes: I am Jim Scholes. I appear as Acting Director of Public
Prosecutions for Q72 Chairman: What implications arise for your service should policing and justice be devolved in the reasonably near future? What implications are there if it is not devolved in the reasonably near future? Mr Lavery: The Court Service is in quite
an interesting position constitutionally at the moment. We are not simply a separate government
department but a separate Civil Service.
That was part of the historical configuration of court administration
when the Court Service was established in 1979.
We were kept apart from the Northern Ireland Civil Service and, indeed,
from the Northern Ireland Office.
Constitutionally we will go through quite a fundamental change of status
if devolution of justice happens. The
Court Service will cease to be a separate and distinct Civil Service in its own
right, our functions will be transferred to the future Department of Justice
for Northern Ireland, and we anticipate that the Department of Justice will
establish an agency, most likely called the Northern Ireland Courts and
Tribunals Service, which will be responsible for providing court and tribunal
administration. Although for my staff
probably they will go home on Friday night as Northern Ireland Court Service
civil servants and come back on Monday morning as Q73 Lady Hermon: Will you remain in post? Will you just transfer over to this new body? Will there be any loss of staff? Mr Lavery: In my own personal terms this question occurs to me quite frequently. Q74 Lady Hermon: Has it been clarified to you? Mr Lavery: No, it has not. Q75 Chairman: Who will make the decision? Mr Lavery: Ultimately I imagine the Minister of Justice will decide, but there is a working assumption that the basic team that is in place in relation to the various component parts of the Department of Justice will remain in place at least for an initial period of time, so the head of the Prison Service is expecting to remain the head of the Prison Service. Q76 Chairman: How ready are you for the change? Mr Lavery: We have been marched up this hill and down again quite a few times, Chairman. I have been in post for just over eight years and when Sir Hayden Phillips interviewed me for the post he said the first challenge was to be ready for the devolution of policing and justice, and I have been getting ready ever since. We are pretty far advanced in terms of the legislative and other preparations, but there are only so many times you can get staff ready for quite a fundamental change. We just need to time this right. Q77 Chairman: Is it something that you and your staff are most anxious to see happen? Mr Lavery: I think if you were working
in the Ballymena court office it seems fairly abstract, the day job is
supporting the local judiciary, the local clients, the local stakeholders, and
I would not think it is a great daily preoccupation for them, but we have tried
to prepare staff to understand that connecting the justice system with the
community that we serve is in principle a good thing. I think there is a degree of anticipation and
optimism on the part of staff. Very few
of us have worked in a devolved environment - I did for a period of time - so
we are trying to explain it actually is a good thing to work for a Minister who
is actually a politician in Q78 Chairman: How long do you think the transition period ideally ought to be? If, as we would hope, agreement is reached in the next few days how long do you think the transition period should be? Mr Lavery: The immediate task to be undertaken in the sense of enacting the various pieces of principally subordinate legislation we have always calculated would take ideally about six weeks, but I dare say we could get the job done more quickly than that if we were required to and perhaps could take a lot longer than that if we were allowed to. The transition in the more fundamental sense of bedding down and becoming more orientated towards a different form of accountability for our work to Stormont, to a Justice Committee and so forth, I am sure that will take a period of time to settle in. Q79 Chairman: Of course. Do you have anything to add to this, Mr Scholes? Mr Scholes: I think many of the
considerations that David speaks of apply to the Public Prosecution
Service. The statutory architecture for
the Q80 Chairman: What about Dr Maguire, anything to add? Dr Maguire: Since I have been in post I have been quite fortunate to have had a series of structured conversations with the Minister for Justice, Paul Goggins. I assume that this would continue in the context of a devolved setting where I would be meeting with the local minister and apprising him of the work and issues arising from that. I expect one of the key challenges for my organisation will be the existence of a Justice Committee and how we engage with the Justice Committee. That is something I am keen to explore whenever that arrives because a lot of the work that we do is perfectly positioned in the context of going to the Justice Committee with a set of issues. That adds an extra layer of accountability which is missing from the current arrangements. Q81 Chairman: What do you think would be the major issues facing a new Minister of Justice in a devolved administration when he or she goes first into the office? What do you think would be the major two or three issues? Dr Maguire: I can talk specifically about
the work that we undertook in 2009 when we did 15 studies across ten justice
organisations. We are beginning the new
year with many of the issues that we began 2009 with and I would highlight a
number of them. In the context of the
work that we have done, policing in the community remains an issue in terms of
how the police adapt to a different type of relationship with local communities
across Mr Lavery: I would echo much of what Dr Maguire said. I think the big challenge for any Minister is to want to be seen to make a difference. The justice machine is quite sophisticated and the levers of control are sometimes indirect because some of the key players in the justice system are independent. The Director of Public Prosecutions has prosecutorial independence, the Chief Constable has operational independence and the Lord Chief Justice has judicial independence and none of the three will be slow to remind a Minister of that. Q82 Chairman: Nor should they be. Mr Lavery: No, exactly. At the same time a Minister might feel that
he or she could make a difference in some areas. One that is often debated in the papers is
sentencing, for example, where arguably in many communities there might be
thought to be something of a disconnect between public expectations and how
sentencing is reported. It may simply be
a case of getting the message across better, but I imagine that would be an
area which a Justice Minister would want to give attention to. In terms of challenges, Michael has mentioned
delay. Clearly there is a lot of work
being done to try to improve the performance of the justice system, but it is
still thought to be somewhat slower in Q83 Chairman: Anything to add, Mr Scholes? Mr Scholes: The principal issues are
delay and victims and witnesses. Delay
is a particular challenge for the community in Q84 Mr Grogan: Just to go back briefly to the administrative implications of devolution in terms of buildings, staffing and finance, is the intention pretty well much as is or will there be any changes in any of these elements? Mr Lavery: So far as the Court Service is concerned, we expect that on day one of devolution we will begin with the same staff and the same estate and the same budget and the budget for court administration is likely to be built on the foundation of the current budgetary baseline. Another area of public expenditure and policy for which the Court Service currently has responsibility is legal aid, which is a very expensive part of the system and, as you know, the Prime Minister has proposed an injection of funding specifically to support that area. I imagine that my budget and staff and estate will be recognisably what it is today. I might like to do a lot with the court estate in terms of improving it, but I suspect it will be challenging to secure resources to do much about that in the first public spending period. Dr Maguire: I do not think there any implications for me. Mr Scholes: We are a relatively new
service created in 2005. We are the
principal prosecuting authority in Q85 Stephen Pound: Politicians occasionally make statements which are more aspirational than prescriptive. About 18 months ago Paul Goggins stood up in the House and talked on the subject of judicial appointments in which he said that judicial appointments should always be made on merit, but wherever possible such appointments should reflect the community served by those people appointed. Specifically about the JAC, have they changed the face of the judiciary, not necessarily since 2008 but since 2005 when they started? Mr Lavery: The Court Service is responsible for supporting the Lord Chancellor at the moment in relation to judicial appointment policy. Indeed, we sponsor the Judicial Appointments Commission. Q86 Stephen Pound: I asked have you successfully changed the face of the judiciary. Mr Lavery: I think the process of
selecting and appointing judges in Northern Ireland is clearly much more open
and transparent than it would have been even a relatively short time ago. It is a much more transparent process. Whether the outcome has been different
appointments or better appointments, I am not sure that I would venture to
offer an opinion at the moment. Arguably
it is a disappointment to all of us, including the Commission, that we still do
not have any women judges at the highest level of our judiciary. One might anticipate that will change in
time. The Commission, as you will
understand, has an interesting dual statutory duty. It must make appointments on the principle of
merit but it must also seek to achieve a pool of candidates and a judiciary
reflective of the community. That is an
interesting dual test that it has to apply to its activities. I would venture to suggest that it is only in
relation to gender that the judiciary is in any way lacking reflectiveness at
the moment. In other respects it would
seem to be quite a fair reflection of the community. I am sure there is some need to recalibrate these
systems over time as well. If any
criticism were made of the judicial appointments system at the moment it would
be its very complexity and the time it takes to make appointments and the fact
that the complexity of the application process might be thought in some
quarters to be a bit of a disincentive.
I am sure the Commission will want to redesign the system over
time. I would not say there is any
empirical evidence that one could point to to say it has as yet changed the
composition of the judiciary in Q87 Lady Hermon: What percentage of women are represented at any level, apart from the High Court? How many judges do we have in the High Court? Ten? Mr Lavery: We have one Lord Chief
Justice, three Lord Justices of Appeal and nine High Court judges with one
vacancy, and there are no females at that level. At county court level, which would be the
circuit judge equivalent in Q88 Lady Hermon: In percentage terms, what does "quite well represented" mean in terms of women? Mr Lavery: I will try and see if I can work that out. I do not have that at my fingertips. I have the actual numbers. I will write to the Committee if I have not brought my calculator, or I may be able to pass you a note before the end. Lady Hermon: Even to reassure the Committee that efforts are being made by those who recruit to encourage women to come forward and also representatives from the ethnic minorities. Q89 Chairman: Have you got a policy of going into the schools talking to all these bright young women? Mr Lavery: The Commission has an outreach policy of its own and the Court Service as a distinct entity also has quite an aggressive outreach policy and we invite schools to visit courts, as of course would happen across the water as well. Among the most effective advocates for women joining the legal profession and perhaps pursuing a judicial career are our female judges. Perhaps it is invidious to name individuals, but some of our female judges are exemplary in speaking to schoolgirls as well as schoolboys about the career the law represents. I will try to find the percentages for Lady Hermon. There are both the full-time judiciary and then the deputy judiciary, which is numerically much bigger where women would be very well represented. I think perhaps the more interesting question is the full-time judiciary. Q90 Stephen Pound: I think the point you make about cross-community representation is well made, and it is taken and accepted, but if quotas are good enough for the PSNI why are they not good enough for the judiciary? Mr Lavery: I think ultimately our principle is appointment on merit. The legislation has been designed so that the best person in terms of intellectual and other abilities gets the job. There is quite a broad spectrum of criteria taken into account. The best person must be appointed and everything else is subordinate to that. With respect, I do not think that the judiciary was subject to perhaps the same degree of community imbalance that might have applied at a particular time in terms of the Police Service in Northern Ireland where there was a challenge that had to be addressed in a very immediate way and it led to this recruitment initiative and so forth, 50/50 recruitment. I do not think the judiciary was ever in that space and, therefore, a slightly more subtle approach and very deliberately using the language of seeking to aspire to make the judiciary reflective - not representative but reflective - of the community was chosen as a subtle signal that we must aspire to have a diverse judiciary. Q91 Mr Murphy: Earlier, Mr Lavery, you touched on legal aid and the promise of additional funding once policing and criminal justice has been devolved. Could you perhaps quantify that for us and explain how the legal aid system will be different in Northern Ireland from the rest of the United Kingdom? Mr Lavery: In terms of the budget, the
Prime Minister has identified additional funding which will be available to the
legal aid system if the devolution of policing and justice goes ahead. What the Prime Minister has cleverly done is
not throw money at the problem, but put enough money into the system to buy us
time to take forward much needed reforms.
I think I would have to concede we have experienced a period of almost
exponential growth in the costs of some parts of the legal aid system in Q92 Mr Murphy: What is the budget currently? Mr Lavery: The budget currently is £65 million, but we know at the beginning of the year that it is not sufficient and in this year, 2009-10, we will probably spend about £102 million, so that £65 million has had to be topped up substantially. The benefit of what the Prime Minister and the Treasury have agreed to do is that we will have a realistic budget at the outset of the year and we know we will have to live within it. Q93 Chairman: Can you do that? Mr Lavery: As I said, it is a significant challenge because --- Q94 Chairman: You would not have met it this year, would you? Mr Lavery: No. The reforms we are introducing could take a period of years to bite. As you will understand, cases tend to have quite a long shelf life and what we cannot do is change the fees for cases that are already in the system, they were contracted at a particular remuneration rate that was applicable at the time. Any reforms that I introduce this year could take up to two years to have a measurable impact. The Prime Minister's settlement also included access to a contingency fund which has a ceiling of £39 million on it which we can draw from this year and next. Q95 Mr Murphy: On top of the £85 million? Mr Lavery: On top of the £85 million. That is really to buy us time to put through the reforms. The first year that we will be standing on our own with the £85 million and no access to a contingency is 2011-12, so we have got that period of time to put in reforms that will have effect in 2011-12 onwards. Q96 Chairman: Are you confident that you can do that? Mr Lavery: We are developing with the Legal Services Commission the range of reforms which are necessary to bring that about. Q97 Chairman: Achieving that is going to be commensurate with also reducing delay, is it? Mr Lavery: I do not think the two things are explicitly linked, but one might argue, for example, that if you move to a more standard fee basis for remunerating criminal cases rather than paying lawyers for each time they appear in court, then that reform of introducing a standard fee that you would get whether the case required one hearing or three is in itself an incentive for efficiency. It is not designed to achieve that outcome, it is rather designed to achieve predictability of expense. I think 2011-12 will be a challenging year for us, I would not want to suggest otherwise, because the lead time in achieving the benefits of the reforms is such that I would be much more confident about having the expenditure aligned for 2012-13 than for 2011-12. That is the year I would be most concerned about. Q98 Mr Murphy: Are the criteria for accessing legal aid exactly the same here in Belfast as in Manchester, say? Mr Lavery: Yes, to all intents and purposes. The civil legal aid system is slightly different, but the criminal legal aid system is a fully non-contributory system and we are starting to look at whether it should remain as such. We think there would be benefit with a more robust means test to determine whether a defendant has the means to pay for at least part of his or her own defence. We are also looking at ideas such as ex post facto cost orders which a judge might make if it became clear in the course of a case that a defendant did have means but had qualified for free legal aid. We think it would be right in principle that a judge could make an order that part of the cost of the legal defence would be met by the defendant. Lady Hermon: I wonder could I just touch on two very critical points that have already been raised but we have moved a little bit too quickly past them for my liking. If I could come back to Dr Maguire. I got the impression that the Criminal Justice Inspectorate had picked up that there are significant delays in the justice system. Without pointing a finger of blame at any one organisation, could you explain how these delays have built up? Perhaps we then could move to Mr Scholes who can respond for the DPP and tell us that the delays are going to be a thing of the past and then we will hear from Mr Lavery and he is going to tell us that he sees the same vision. Q99 Chairman: Yes, but could I please ask that we try and have reasonably brief answers because I am very conscious of the fact that we have not got on to judicial independence yet, which was your area. If you could deal with that one very quickly for Lady Hermon, that would be helpful. Dr Maguire: The basis for our thinking around this was a substantive report that we published a number of years ago looking at delays across the justice system, and we are currently involved in doing a follow-up piece of work looking at the extent to which the recommendations put forward in the previous inspection have actually been implemented across the different organisations. That is work in progress at the moment and we will be reporting on that within the next month or so. Many of the challenges that we identified in the previous piece of work actually remain in the context of how justice organisations link together. There are several issues. One is looking at the relationship between PSNI and PPS and that brings into question issues around timeliness versus quality. The PSNI may well be meeting its timeliness target but the number of files that are going back from PPS to the police raises issues about the extent to which the information flows are correct. You move from the nature of the relationship between the PPS and PSNI to the PPS itself and dealing with backlogs, the time dealing with requests for further information, the way in which they issue summonses and engage with witnesses, and then there is the actual court process and the number of adjournments. What we are finding is that while progress has been made in certain areas, when you get underneath the detail of some of the substantive issues we still see some serious challenges in relation to the kind of steps that need to be taken to reduce delays. Mr Scholes: It is important
not to be defensive but also to acknowledge that
the Mr Lavery: I suppose the contribution that I would like to draw attention to is the Lord Chief Justice has set judicial standards for the management of the stages of a criminal case when it reaches the control of the court. As Michael has explained, we have a suite of targets for the administrative stages, what the police do, what the PPS do, what the court administration does, but it is also helpful that the Lord Chief Justice has supported that initiative by setting standards for the management of cases by the court itself, including the time to prepare and deliver a judgment. It is good that the judiciary have complemented that initiative. Q100 Lady Hermon: How would independence of the judiciary be preserved or protected in all circumstances in the event, as I hope, we have the devolution of policing and justice? How do you protect the independence of the judiciary? Mr Lavery: On the judiciary, of course,
there is explicit statutory expression of the continued independence of the
judiciary, as you will know, in the Justice Act 2002. It is intended also that that will be
reinforced or given further expression in the form of a concordat on judicial
independence which will be entered into between Her Majesty's Government and
the Q101 Lady Hermon: Is that already in draft form? Mr Lavery: It is in draft form. It is one of several concordats. I am sure Jim will explain about the one in relation to prosecutorial independence. It is ready in draft form and builds on that statutory expression. We have tried to amplify it a bit further to include the tribunal judiciary because they are not really caught by the statutory formula. We have tried to use the concordat to be a wee bit more ambitious about defining the judiciary as anyone making an independent judicial decision, whether in a court or a tribunal. Q102 Lady Hermon: Are you able to disclose to the Committee some of the matters that are actually covered by that concordat? Do not breach something that is confidential, but in broad terms the matters that will be covered within that concordat, if you are able to. Mr Lavery: I think it is the intention of the Government to share it with the Assembly and Executive Review Committee at the appropriate time. If you read the statutory expression in the Justice Act you would probably recognise it if you read the draft concordat, only with more words, if I can put it like that. Things that underpin judicial independence include the fact that listing of cases is a judicial function, for example. In other words, the Government should not decide which judge deals with which case. Those matters are perhaps made more explicit and would be an illustration of that. Is that of any assistance? Q103 Lady Hermon: That is very helpful indeed. In terms of the Justice Committee that we expect and hope to have established within this building, within the Assembly, who will answer for the judiciary and, indeed, the Public Prosecution Service? Mr Lavery: In terms of court
administration, to go back to your earlier question, if I survive and keep my
job I would be accountable to the committee for court administration. The Lord Chief Justice as head of the
judiciary and President of the courts in Q104 Lady Hermon: Not to be summoned but could offer to come? Mr Lavery: Yes. Q105 Lady Hermon: The position with the Director of Public Prosecutions? Mr Scholes: The statutory architecture is there in place through the Justice Act. Section 42 provides that the Director shall be independent in the exercise of its functions. The Act also provides that he is not required to answer any question or produce any document in relation to any matter other than finance or administration. Having said that, an accountability mechanism is established through his relationship with the Attorney General. The Director is required to consult with the Attorney General from time to time in relation to any function for which the Attorney is accountable to the Northern Ireland Assembly. It is clear that the Director will be required to furnish facts and information to the Attorney in order to ensure that this relationship will be effective. Q106 Lady Hermon: Mr Scholes, am I right in thinking that you are explaining to us that you would not anticipate the Director actually offering to come to speak to the Justice Committee or have I misconstrued that? Mr Scholes: No, I am not saying
that. What I am saying is I would
envisage the Director coming to the Justice Committee, for example in relation
to matters of prosecutorial policy, but he is not accountable in the sense that
he can be told what prosecutorial policy should be. He is accountable in the sense that it is
clearly in the interests of the Prosecution Service to explain, particularly to
the Justice Committee and the people of Q107 David Simpson: I will be brief because a lot of the points have already been touched on. Lady Hermon mentioned the issue of judicial independence. Earlier on, Mr Lavery, you referred to changeover from an independent Civil Service. Could you elaborate a bit more on the implications arising from that and especially the funding aspect of it? Are there any massive changes there? Mr Lavery: At the moment, although it
seems improbable, I am head of a Civil Service, albeit a very mini-Civil
Service, and I am one of a number of departments under the Lord Chancellor and
my funding is arranged directly with the Treasury to all intents and
purposes. In the future the Court
Service will be an executive agency of the Department of Justice and, probably
in consultation with the Chief Justice I would expect, I would develop a budget
for the next business period - it is usually done in three year cycles - and I
would have to submit that through the Department of Justice to the Department
of Finance and Personnel. Our
orientation in terms of securing funding for court administration and the
judiciary will be a dialogue between the Department of Justice for Q108 Mr Hepburn: The Inspectorate were critical of the Prosecution Service in two areas: communicating their decisions to victims and the speed at which decisions were being arrived at. What improvements have been made there? Mr Scholes: In some ways I have dealt with the issue in terms of timeliness and, again, I reiterate that the Public Prosecution Service was one of the few agencies to actually meet the administrative time limit targets for 2008-09. However I freely acknowledge that delay remains a problem and we have a part to play. In terms of victims and witnesses, it is important to recognise that in a survey carried out in 2009 over three-quarters of victims and witnesses who dealt with the Public Prosecution Service professed themselves to be satisfied or very satisfied with the service they had received. You have raised a particular issue in relation to communication. It was perhaps an unfortunate matter of timing, but at the time when Michael was preparing and delivering his report we had begun within the Service to develop our policy in relation to giving of reasons in respect of a number of serious offences, such as murder, attempted murder, manslaughter, causing death by dangerous driving, serious sexual offences, hate crime and even down to domestic burglaries, where the community had expressed that these offenses were clearly a matter of concern. We have extended our policy in relation to the giving of reasons and will provide reasons in circumstances where we do not prosecute without request from the victim. That is a significant development of our policy and one that is designed to enhance confidence amongst victims and witnesses. Q109 Chairman: Before we move into private session there is one point I would like to put to you. Last week we received evidence from the Forensic Science Service of Northern Ireland. This follows a visit that we made in October of last year. I think I can say that we were very impressed by what we saw, by the professionalism and expertise especially of a remarkable team of young scientists working on very advanced techniques, and we were impressed too by the quality of the evidence that we received last week. During our exchanges with the Chief Executive I asked if he and his colleagues would be willing to conduct a seminar, or seminars, on forensic science evidence for the judiciary because there was some concern that perhaps the judiciary were not always completely au fait with the scientific basis of the work. If such seminars were to be offered, would they be taken up? Mr Lavery: I did see a press report
about Mr Brown's remarks, the Chief Executive, and I understand that he has
extended an invitation to the Lord Chief Justice to visit the Forensic Science
Service and the Lord Chief Justice has accepted that invitation. I am sure they will want to discuss whether
something perhaps delivered through the Judicial Studies Board for Chairman: Excellent. I think we are all very glad to hear that. Let us hope that other things might flow from it. Have any of you gentlemen anything that you want to put on the record before I go into private session? In which case, could I ask that the public gallery be cleared please. Thank you. |