Official Report: Minutes of Evidence

The Chairperson (Mr Givan): I formally welcome Barra McGrory QC, director of the Public Prosecution Service (PPS), and Ciaran McQuillan, the assistant director of policy and information from the Public Prosecution Service. You are both very welcome. As normal, we will record this for Hansard, and the report will be published in due course. Barra, I hand over to you.

Mr Barra McGrory (Public Prosecution Service): Thank you very much. Mr Chairman and other Committee members, I thank you for the opportunity afforded to the PPS to give you our view of the proposed reforms in the Justice Bill. I want to take you through some of the proposed reforms and suggest ways that, from the PPS's perspective, they might be improved. There are a couple of other matters that I want to touch on, if you do not mind. One arose out my reading of the Attorney General's submission to the Committee on rights of audience for employed lawyers, and the other is on some of the issues that Mr Poots raised on two counsel in cases. I would like to say something about that.

I will begin with the issues in the Bill. You may recall that I was here two and a half years ago, when, I think, the second Committee Stage or something was reached. It is some time ago. I was looking through the Hansard report of that meeting, and I can say that my views have not changed significantly from those that I outlined then. I said then that I felt that the administration of Crown Court cases would greatly benefit from a suite of reforms that, if interlinked, could be very effective. Those reforms included, in the review of the Public Prosecution Service, the abolition entirely of the committal stage in Crown Court cases; some statutory measures on the incentivisation of early guilty pleas; case management rules; and some specific changes to legal aid, which I feel would complement the other reforms to make them more effective. I welcome the reforms in the Bill, but in my view and that of the PPS, they do not go far enough. I will say why now.

I will begin with committals. The Bill abolishes a defendant's right to call to give evidence a complainant or a witness cited in the prosecution papers. That is to be welcomed, because the existence of that measure at the moment not only contributes to significant delay but adds to the stress and trauma of victims and witnesses in the criminal process. It affords to defendants two opportunities to cross-examine and examine witnesses, which, in the Public Prosecution Service's view, was never really an essential component of the right to a fair trial because that is afforded, of course, to a defendant in the principal trial process. So, I welcome that reform.

However, it is limited in two significant ways. It applies only to the question of cross-examining witnesses and leaves in place the committal procedure. In our view, we cannot see why the committal procedure is left in place in a situation where the right to call witnesses is being abolished. While that is significant, by not abolishing committals altogether, there is remaining in place an additional process in the trial procedure that we believe is, ironically now that they have abolished the right to call witnesses, even more unnecessary than it was when that right existed. Since that was the principal evil — I hope that is not too strong a word — or principal mischief, which might be a better word, in the committal process, having done away with that, why not go the full hog and do away with committals altogether?

By leaving the paper process in place, the Public Prosecution Service is still required to prepare a set of papers for the Magistrates' Court. It requires a Magistrates' Court process, which requires the receiving of the papers and the listing of the case in the Magistrates' Court. It may then still be subject to adjournments and other delays in the Magistrates' Court process. There is a financial tier there, of course, because the defence gets paid for representing its clients in that process, albeit that it is not examining witnesses. It also has to be referred on to the Crown Court, which creates another delay. So, we consider that, by leaving in place the paper committal process, you are creating an eight-to-10-week delay in the criminal trial process that, in our view, is unnecessary.

Of course, the other aspect of it is that the Bill contains a provision for the direct transfer of cases in very limited circumstances. Those in which the defence has indicated that it is willing to plead guilty can be directly transferred, and that is welcome. That can happen in murder and manslaughter cases but with a schedule that will allow for categories of cases to be added. That, of course, is welcome, but, as I said, it is of limited value. Those are very serious cases that can now be directly transferred to the Crown Court judges, but they do not include other very serious categories such as rape or child sex abuse or other serious cases that, in our view, would benefit from immediate transfer to the Crown Court. On the proposed reforms of the committal procedure, it is the Public Prosecution Service's view that those in the Bill are welcome but could go further.

We also welcome the measure on early guilty pleas, but I am concerned that it does not nearly go far enough. The Public Prosecution Service is of the view that there needs to be a significant driver in the criminal process to concentrate defendants' minds on the question of the benefits of pleading guilty at the earliest possible opportunity. The proposed measures are that the Crown Court judge, when sentencing, will say what the sentence would have been had the person pleaded guilty at an early stage. There is a view that that is closing the door after the horse has bolted, because the damage is done at that point. I would rather see a judicial intervention at an earlier stage, such as at arraignment, where there is a requirement on the court to ascertain from the defendant or his lawyers whether that advice has been given.

The Bill places an onus on the solicitor to give the advice, and I have personal misgivings about that as well. That is because I think it would be difficult to police. There is an issue of privilege between solicitor and client, so I can envision problems with the Law Society in policing that. Why is the responsibility being put on the solicitor only? In my view, if there is any responsibility, it should be on the advocate, whether it is counsel or solicitor, appearing in the court to confirm to the court that advice has been given. Or, indeed, the court, as many judges do anyway, could ask in open court, "Are you aware, before you make your plea at the arraignment stage, that there may be significant benefits to pleading early rather than later if you ever intend changing your mind?" The court setting those out earlier in the process would have, I think, the potential to be more effective.

There is also a legal aid issue. I do not want to get bogged down in the minutiae of legal aid, but we have raised this with Department of Justice officials. There are three types of fee in criminal cases. There are GP1s, GP2s and trial fees. If the defendant pleads guilty to all counts, the GP1 is a respectable and modest fee for defence lawyers. The GP2 is a significantly enhanced fee and is paid if there is an entry of a not guilty plea to any offence on the indictment. The trial fee, of course, is paid after the first day of the trial.

We see the GP2s as a significant financial incentive to the entry of a not guilty plea. I am not saying that it is abused unprofessionally, but I think that it might be better managed if the GP2 were not triggered until a later stage in the process where it was clearer to all concerned that this was a serious not guilty plea. We must always account, of course, for occasions when not guilty pleas become guilty pleas. It is in the broader interest of justice that there will be a provision for payment of lawyers in circumstances where there is an unforeseen change in the plea. However, as I said, I think that that GP2 could be re-examined and perhaps triggered further down the process once the case has been listed for trial and the issues identified. I have asked my officials to raise that with DOJ officials, so perhaps the Committee will bear that in mind when those amended Crown Court rules are tabled. That is another factor.

Those are the issues in the Bill that I wanted to specifically comment on. There are statutory case management provisions in the Bill that I welcome. The Lord Chief Justice has already introduced, by way of practice direction, significant measures that have proven to be very effective in the speeding up of Crown Court cases. I certainly welcome that they be given a statutory footing. As I said, I hope that those who are responsible for the drafting will bear in mind some of the other points that I made about tying in the various points in the management process of cases with the early guilty plea provisions and legal aid provisions. If we combine all those measures, I think that we could have a very effective and significant reform of the criminal justice process. This Bill goes a good measure of the way towards that, and I certainly commend the Department and the Minister for the measures they proposed, but I think that there is an opportunity here that I do not want to lose. Given the timescale during which we have been talking about these reforms — the past three years — I fear that it might be a long time before we get another opportunity and that we should put into the Bill what we can now.

I mentioned two other points at the beginning. One concerns statutory rights of audience. In his submission, the Attorney General asked the Committee to consider giving higher rights of audience to his employed lawyers. You may be a bit puzzled by that. The background is that a barrister's rights of audience are restricted once a barrister becomes an employed lawyer rather than remaining in the self-employed Bar. A self-employed barrister has a right of audience, by nature of a qualification, right through to the High Court and even the Supreme Court, but once that self-employed lawyer takes a job and gets paid a wage, whether it is in the Attorney General's office or, indeed, the Public Prosecution Service, he or she loses the higher court right of audience. The Attorney General has flagged that up in the sense that, if he could permit his employed lawyers, of whom there are a limited number, to go into court not only could he save public money but it would be more effective for the running of his office. I have endorsed that view with DOJ, which is carrying out a consultation, but I have also pointed out that it would significantly benefit the Public Prosecution Service as well. I do not mean every lawyer in the Public Prosecution Service. One of the initiatives I have started since I came in is the creation of a higher court advocacy unit. I have a body of lawyers in the office who take Crown Court trials, for the first time ever in the history of prosecution, and those who are barristers have their right of audience restricted. If the Committee is going to give serious consideration to the Attorney General's proposal, I would like you to also consider that in the context of the PPS higher court advocates.

The final point addresses the issues that Mr Poots raised in the previous evidence session. I was listening, Mr Poots. The PPS is concerned about the disparity in the funds that are available to the defence for services of counsel and those that are available to the Public Prosecution Service. DFP very tightly monitors my budget, which will come as no surprise to anybody, and it monthly regulates the employment of counsel and asks questions about it. The guidelines that we have, approved by DFP, allow us to instruct only senior counsel, that is, two counsel, in cases of death, serious sexual offences or very serious fraud. We can instruct senior counsel in only 6% of the cases we take in the Crown Court. As you heard, the defence has reduced its level of two counsel from 50% to 22%. In my view, there remains a significant disparity in the equality of arms afforded to the prosecution compared with the defence. The structure is that the defence acquires two counsel certificates by applying to the court. I have suggested to DOJ that it might consider, as is the case in England and Wales, removing the authority to the Legal Services Commission, which could take into account whether the prosecution has also instructed senior counsel. That is not to say, of course, that the defence should get senior counsel only in cases where the prosecution has it, but it would nevertheless at least give us a better chance of evening out the current disparity. That is just something that I picked up in your remarks, Mr Poots.

Those are my general observations on some of the bigger issues in the Bill. Mr McQuillan has his own observations to make as well, so I do not know whether you want to hear from him before you talk to me about mine.

The Chairperson (Mr Givan): No, we are happy, because there are a few things that I want to pick up on anyway.

Mr Ciaran McQuillan (Public Prosecution Service): Thank you, Mr Chairperson. In addition to the matters that the director mentioned, the main aspects of the Bill from a PPS perspective are the provisions dealing with single jurisdiction, prosecutorial fines, prosecutor summonses and victims and witnesses, particularly the victim and witness charters.

Dealing with them in that order, we acknowledge the benefits that could flow from abolishing the present County Court and petty sessions district to create a single jurisdiction, as the Bill proposes. Criminal cases in the Magistrates' Court could be moved to suit victims' and witnesses' needs, and best use could be made of limited court resources. We do not, however, consider that business needs should take precedence over victims' and witnesses' needs when these decisions are being made. In addition, criminal cases require not just civilian witnesses but police officers and, on occasion, doctors, engineers and forensic scientists. Prosecutors and defence representatives need to prepare all the cases that will appear in court on any given day, and arbitrary movement of the cases could disrupt the efficient preparation of a case and inconvenience a range of witnesses who provide important services to the public. We hope that the guidelines on how court business will be listed will ensure that that does not occur. Furthermore, when the PPS was set up, it was considered a priority that it be a regional service. We have offices throughout Northern Ireland to provide a link with local communities and proximity to the regional courts. Should the introduction of a single jurisdiction reduce the number of criminal cases that are heard in a particular region, it could be difficult for us to sustain our present regional structure.

The introduction of prosecutorial fines allows for low-level offending to be dealt with fairly and efficiently without having to resort to court proceedings. They provide potential savings of court and prosecutor time whilst maintaining a regime of condign penalties for minor offences. Whilst there will be understandable concern that the process for administering prosecutorial fines should be carefully regulated, it is for that reason that the legislation proposes that the director issue guidelines to his prosecutors on how the scheme will operate. The PPS will consult on that guidance before it is introduced. The PPS is already testing the operation of prosecutorial fines, and a careful analysis of the results of our research will be carried out and will inform any draft guidance. Our own research has shown that many of the cases that would be suitable for prosecutorial fines would normally carry penalty points, such as low-level road traffic offences. The Bill is silent on this aspect, but were we given the power to offer penalty points in addition to a fine, we would be able to handle those cases, and it would make the operation of the scheme all the more effective. Implementing prosecutorial fines would involve costs for those criminal justice organisations affected and would need to be cost-effective as well as fair.

We appreciate that the proposal to allow prosecutors to issue summonses is a departure from the established position that the issue of summonses is a judicial function that is presently carried out mainly by lay magistrates. It is important to note that a summons is only a means by which a person is required to attend court. The decision whether to prosecute an individual is already made by a prosecutor and will continue to be so. That decision is made only after careful consideration of the evidence and in accordance with our code for prosecutors. Any prosecution that is directed is, of course, open to challenge through the court process.

The power to issue a summons will bring greater efficiencies, as it will no longer be necessary to attend before a lay magistrate to have a summons signed to allow them to issue. In addition, the difficulties in the service of summonses and the need to reissue those that go unserved has been a cause of delay in the criminal justice system for some time, and it is hoped that allowing prosecutors to both issue and reissue summonses will help to reduce delay. The power vested in prosecutors will, however, be discharged in the same carefully considered way in which decisions on prosecution are and with the protection that all cases initiated by summons will be decided on ultimately by the courts.

The PPS welcomes the introduction of the victims charter, which will be given statutory force by the Bill. We have worked with the Department on the development of the charter, and it reflects many of the practices that we already have to provide an enhanced service to victims and witnesses. A particularly important development has been the establishment of our victim and witness care unit, where the PPS and PSNI staff work together, along with members of Victim Support, to provide victims and witnesses with a single point of contact for information about their case, to assess any special needs they may have and to keep them updated about developments in the case that affects them. This unit has been the product of several years' close cooperation between a number of criminal justice organisations, and it means that we are confident that the commitments in the victims charter can be delivered in a way that improves how victims and witnesses experience the criminal justice system.

I am happy to take any questions.

The Chairperson (Mr Givan): Thank you very much. We will go through the Bill Part by Part. The first Part is on the single jurisdiction aspect. I suppose my question is this: how efficient and effective would a single jurisdiction be for the PPS and its delivery of the responsibilities that you have?

Mr C McQuillan: As I said, it will really depend on how it is operated. There are guidelines that are proposed. Were cases moved — I understand from the Department that that is not, by any means, the intention — in a way that would disrupt normal business, moved at short notice or otherwise moved in a way that made it difficult to prepare them, that would obviously be a difficulty. However, we can see advantages in a single jurisdiction. As I said, it allows for victims' and witnesses' needs in a case, if they perhaps do not reside in the area where the offence occurred. The general principle is that cases will be heard in the area in which they occur, but if, for instance, the majority or all the victims and witnesses were from another area, the case could be moved to that area. It may also mean, without impinging on any victims' or witnesses' rights, that if there was spare capacity or good business reasons for moving a case to utilise scarce court resources, that could be done. We would welcome all those. We do not think that there is any reason why having a single court jurisdiction cannot be advantageous, but we just caution against how it may operate.

The Chairperson (Mr Givan): Certainly, the PPS would need to reorganise how it operates to accommodate that. What would be the implications specifically for the PPS?

Mr McGrory: It is less to do with the single jurisdiction than the location of courthouses in juxtaposition to our offices. At the moment, the offices are located around major court centres. I know that there are discussions ongoing with the Court Service about potential courthouse closures and relocations, so it certainly knows our views on that. Everything is up in the air at the moment pending the budgetary considerations, but certainly the PPS is structured in the way it is around the jurisdictions. We are less concerned about the single jurisdiction in that regard than we are about the relocation of certain courthouses, but we will worry about that when the time comes.

Mr C McQuillan: The Court Service is undergoing a consultation on how it will reorganise administrative divisions, and we will obviously partake in that consultation.

Mr Frew: Would it be conceivable, if you had a court that was bunged full of work and very, very busy, that a trial that was to take place in, say, Ballymena would be moved to County Tyrone just by the sheer fact of the level of work and if there was spare capacity in another court? Would that be conceivable?

Mr C McQuillan: Guidelines are proposed about how this will operate, and there have to be good reasons to depart from the guiding principle, which is that cases, if you like, that occur in Ballymena will be heard in Ballymena. There are a number of proposed good reasons, and people will be given an opportunity to make representations. If parties to a particular case had objections about a case being moved, they could go to the judge and make representations, as I understand it from the Department's proposals. If it was appropriate to do so within the guidelines, cases could be moved, although you would like to think that where they would be moved to would take into account witnesses' ability to travel.

Mr Frew: There could be a balance here. Would it be the case that, if you moved, you could be heard sooner? Is that right?

Mr C McQuillan: It may be one of the considerations. The efficient use of courts and the efficient discharge of court business is one of the considerations that will be taken into account.

Mr McCartney: From what I am hearing, you are not opposed to the idea of a single jurisdiction; the issue is how it is managed.

Mr C McQuillan: That is right.

Mr McCartney: How do we put in place management structures that do not allow it to become this idea that there is a single jurisdiction and that it does not matter where a case takes place?

Mr C McQuillan: The proposals that the Department makes — when they speak to you, they will be able to give you more detail on them — really allow for any party to make representations. If it was, for instance, we or a victim or witness who wished to say, "You are intending to move this case, but I have very good reason why you shouldn't", that should be a check on arbitrary movement.

I was cautioning on the concerns that I raised, rather than necessarily saying that they would happen. I would like to think that the guiding principle would be that the vast majority of cases will be heard in the area where they occur. If they are moved, it would have to be for good reason, and parties could make representations about that.

Mr McCartney: Who has the final say? If someone makes a case —

Mr C McQuillan: The judge. That is my understanding of the guidelines.

Mr McCartney: People might have the suspicion that a number of court buildings are under pressure. If you do away with a court building, you will automatically do away with the ability to have a case heard in a particular place. You might see a slide towards that, and it is about how you protect yourself against that. We do not want to end up with a system that has the protection of witnesses and victims at its core, but, through other procedures, we lose court buildings and the ability to have it closer to —

Mr C McQuillan: That is a concern, and that is why we raised it. As I said, the guidelines, which the Department will maybe be able to expand on, will hopefully guard against that.

Mr Elliott: I have one brief question on that. Are there any cost implications for the PPS in having a single jurisdiction system?

Mr McGrory: Not really. It is more about the location of the buildings and how it will affect travel and the location of local staff.

Mr C McQuillan: If it were to cause a reorganisation, it might have an impact. We do not know at this stage. The consultation still has to occur.

The Chairperson (Mr Givan): Committals seem to be a big part of it. Barra, from what you indicated, it seems that the Bill could be go much further. Indeed, my take on what you said is that it will still require a process, but it will have even less meaning than it currently has, as you would only remove one element of it, so why keep it at all.

Mr McGrory: It is now a paper process. Up to now, it has afforded the defendant the right to cross-examine witnesses. It is a right that has not been widely used, but, when it is, it can cause considerable disruption and delays. We have examples of a number of cases that have been in a Magistrates' Court process for over a year and, as you know, Mr Chairman, there have been some recent quite controversial cases in which it has been a feature.

The removal of the right of the defendant to ask the questions is a significant development. Let us not take away from that. The Department has proposed leaving in place the paper process, but I am puzzled as to why, when it has removed the right to cross-examine witnesses. There will now be no oral evidence and no preliminary investigation, but the preliminary inquiry will continue to exist. That will allow the defence to seek disclosure, to make applications for abuse of process and to make an application to a district judge not to return the case. It will require the Public Prosecution Service to staff a lawyer to go through that process, and it will take time. There is also another process in sending it to the Crown Court, where it will begin all over again, applications for abuse of process can be renewed, applications for disclosure can be renewed and an application for a no bill, for example, can be made. So, defendants will effectively get two bites at the cherry.

I am aware of the argument that will come from the defence side that it is an essential part of the trial process. I agree, but I do not know of any construction of human rights jurisprudence that allows you to have it twice. It is a luxury and a historical anomaly that no longer exists in the GB jurisdictions. It is also expensive for the public purse, not only with the extra cost to legal aid but with the burden that it puts on the Public Prosecution Service. I see no value in keeping it.

The Chairperson (Mr Givan): What about the argument that it helps to produce earlier guilty pleas and the withdrawal of charges?

Mr McGrory: Show me the evidence.

The Chairperson (Mr Givan): So, you are not aware of evidence that would sustain that point of view.

Mr McGrory: No, but there is a helpful provision in the Bill that allows for that process to be skipped if a defendant wants to enter a guilty plea during that process, and it would mean that they would automatically go to the Crown Court. That is a very helpful provision, but why not have that with everybody? I have not seen any empirical evidence of people wishing to plead guilty at the Magistrates' Court stage of the case.

Mr McCartney: We were on abolition; I will move slightly forward. What was the original intention of the committal proceedings?

Mr McGrory: It is a historical procedure that probably dates back to the days of the grand jury, when there was a very intricate process that allowed for the examination of witnesses at various stages of the process and for the holding of a grand jury to decide whether there was a true bill and all of that. That was done away with in the late 1960s because it was seen as a very cumbersome third tier. The Magistrates' Court stage and the committal procedure is a historical procedure that has remained in place in this jurisdiction. It was done away with in England and Wales quite a few years ago because it was seen as a cumbersome and unnecessary additional element to the process.

It harks back of the days when there was a view that all those procedures were necessary to afford people their rights. However, they are expensive and they are costly for victims and witnesses' experience of the justice system. In the modern world in 2014, given the victims and witnesses issues that are coming into focus and the issue of cost, we have to ask whether it is a necessary part of the process. I can see no strong argument to keep it. Others may argue differently, but from a prosecutorial point of view, we can give people a fair trial without it.

Mr McCartney: You see —

Mr McGrory: The courts are the people who give people a fair trial. Let me make that clear. I am not claiming that that is our responsibility necessarily, but we play a significant part in that.

Mr McCartney: On a lot of what the Committee has done on that type of issue, the backdrop has always been the high cost of the criminal justice system, like legal aid and all that contributes to it. One of the strong arguments promoted by the Department for many of the measures is that they will save money. If you look at all the layers — we will get into it later on — such as early guilty pleas and doing away with committal, we see that it will streamline the justice system, but really the imperative is to save money rather than to preserve the quality of justice. How do we protect ourselves against that? Everything that you said is about saving money, but missing from that seems to be whether a person gets fairness. On the early guilty plea, many of those who present to courts are very vulnerable. We have seen the prisoner statistics, and their literacy and numeracy skills are very low. They are being put into situations in which someone tells them that, if they do not plead guilty, they will get a heavier sentence. If they are vulnerable and do not have the full ability of a thinking person, they could be bamboozled or practically coerced, in a gentle way, into making a decision that is not in their best interests or that of the justice system.

Mr McGrory: I appreciate that, but, like everything else, it is about getting the balance right. If you build in sufficient safeguards to the system, you will balance out those concerns. I would never want to go, for example, with the American system of plea bargaining, in which the prosecution comes along and says that you will get 20 years if you plead not guilty but they will give you a deal for 10. That is not what we are talking about. Instead, we are talking about very measured reforms that would simply put in place procedures that would remind defendants that, if they are going to change their mind down the line and plead guilty, they would be better off doing it sooner rather than later.

The last statistics that we have are for 2012, and they show that something like 28% of defendants who pleaded not guilty changed their plea before the trial. That is a very significant number. If they changed their plea to guilty before their trial, they knew that they were guilty when they pleaded not guilty. Those are the people who you are talking to. Of course, you must have in place provisions for legal advice at the point at which they are being asked to make their plea, and those measures that remind them of the consequences of a subsequent guilty plea where they have pleaded not guilty need to be done in a measured way. That is why we have taken the view that the proposals in the Bill that require the solicitor to do it will, on balance, not be enough. So, you could maybe require the court to mention it or require the court to ask the advocate whether the statutory advice has been given.

I am reminded that the Law Society, which is coming in next, is suggesting in its written submission that it is the prosecution's responsibility to do that. With respect to the Law Society, its members would be screaming blue murder if the prosecution tried to approach any of their clients to suggest to them that they should plead guilty early. So, I do not know how that one will work in practice. In our view, it should be the defendant's lawyer's responsibility to give the advice, if not in conjunction with the court. For example, with the decision on the part of a defendant on whether to give evidence, there are provisions that trigger the advice and the potential taking of adverse inferences at a certain stage in the process, and those are governed by regulation. So, I see no reason why we could not do that in a similar way with the guilty pleas, bearing in mind your concerns, Mr McCartney.

Mr McCartney: I will return to early guilty pleas. Sorry for straying into that, Chair. With regard to the committals, it says application for disclosure at committal and then application for disclosure at trial. It strikes me that, in a good prosecuting system, if material evidence were to become available that would prove a person's innocence or would assist in a defendant's case, the Prosecution Service would hand it over immediately to the defence. The suspicion has always been that that does not happen. Maybe, increasingly, that is changing. How do we get to a situation where applications for disclosure will perhaps become a thing of the past?

Mr McGrory: If you were to abolish committals, that would solve a lot of the problems because, at the moment, the structure on disclosure is that primary disclosure is given at the committal stage and the secondary disclosure is not triggered until after the defence statement comes in, but that is after committal. That is between the committal and the arraignment. So, the issues are in play and the prosecution reviews the issue of disclosure. I think that removing the committal process altogether would work in the defendant's favour, and you could then look at disclosure from the point of view of delivery of the papers and bring forward the point at which the defence say what their issues are. The law is very clear on disclosure. Absolutely, the prosecution has a duty to disclose anything that is of assistance to the defence and detrimental to the prosecution, and it is constantly reviewed that the trigger for the second review is when the defence declares its hand, so to speak, on the issues. So, if that is earlier in the process, we can get disclosure earlier. I think that there are ways in which an abolition of committals could benefit defendants as well as prosecutors.

Mr C McQuillan: As prosecutors, we are under a continuing duty to review the prosecution. If we were to be provided with a piece of evidence that meant that the case no longer met the evidential test, we would not be prosecuting the case. Our duty is to apply the test for prosecution, and we do that throughout a case.

Mr Poots: I take it, with your reference to committal, Mr McGrory, that there are things that you can give absolute clarity on: that equality will not be diminished; that efficiency will be improved; and that effectiveness will be improved.

Mr McGrory: I realise that, in advocating the abolition of committals, I am putting pressure on my own organisation, because there is an argument that, by going through the committal process, where we issue papers and send them over to the Magistrates' Court and issue them to the defence, we buy time. If you abolish that, we are going to be under pressure to be ready to go to trial earlier, potentially. I am very well aware of that. That may be the reason, partly, for the incremental approach taken by the Justice Department. The Department may take the view that, if we abolished that, the system would not be able to cope with the pressure. I think we would just have to get ready for it. In response to your question, Mr Poots, I have to say that it would put us under pressure, but we would have to tool up and be ready to respond.

Mr Poots: But for those tests that I put to you, is my view of them, as you have elucidated today, correct or wrong?

Mr McGrory: Sorry, I think this is my fault. I have not listened to your question properly.

Mr Poots: OK. I said equality would not be diminished —

Mr McGrory: No.

Mr Poots: — efficiency would be improved and effectiveness would —

Mr McGrory: I think it would be, yes. Sorry, I misinterpreted what you were saying.

Mr Lynch: How much do you think it would speed up justice? How important would it be in the process of speeding up justice?

Mr McGrory: As I say, the committal process adds about eight to 10 weeks to the process. Take it out of the picture, and that would put us under pressure to be ready to go to trial quicker. I think we could do that if the committals were abolished. We would have to reorganise completely, as would a lot of other people. In terms of the average time it takes to get a case to court, there is at least an eight- to 10-week saving, in our view.

The Chairperson (Mr Givan): No other members on that point? We will move to prosecutorial fines. Does any member want to raise —

Mr McCartney: I do not think we said this the last time. Ciaran made the point that, if there are points involved, at present that is not covered.

Mr C McQuillan: At present, the Bill is silent on the issue of points. It does not mention that. It may be that points could be available to a prosecutor when they are issuing a fine, either through the Bill itself or through a different arrangement that may fall to be discussed with the Department. However, at the minute, the power is not contained in the Bill, so the Bill is silent on it.

Mr McCartney: If the Bill, as written, went through, would that reduce the number or just leave it unsaid, so to speak?

Mr C McQuillan: Our view is that a large number of the low-level cases, which is really what we are talking about for prosecutorial fines, would be low-end road traffic offences. A number of them — for instance, driving without due care and attention — carry a mandatory three points. If we did not have the power to impose penalty points, we could not offer a fine. Well, we could offer a fine, but we could not offer penalty points with it if we did not have that power. That would preclude it from being one of the offences we could use. So, yes, it would reduce the number of cases where we could use prosecutorial fines.

Mr McCartney: Has the Department given you an indication, or is this the first time it has been raised?

Mr C McQuillan: To be fair to the Department, our position on this has probably evolved over time. We have raised it with the Department in more recent times. It is not a straightforward matter by any means, and it is something that we have raised with the Department in the last 12 months, but, as I say, to be fair to the Department, it is something that we may have taken a new view on more recently. Having looked at it, and having carried out some of the research ourselves by looking at the sort of cases that we might look to offer prosecutorial fines on, we thought that this might be a useful addition.

The Chairperson (Mr Givan): Just for my benefit, to be clear on that, this is for an offence where you are going to get your three penalty points, but you need to go to court to get them. The PPS can have the power to say, "Take your three penalty points from us. You don't need to go to court to do it", in essence.

Mr C McQuillan: Yes, that is it in essence, in addition to a fine. We will obviously seek to fine at a level that is appropriate to the offence and reflects the sort of practice that the courts presently do. That is the proposal.

The Chairperson (Mr Givan): Could you have the scenario where you are able to dispose of the fine element of a road traffic incident, but you still need to go to court to get your penalty points?

Mr C McQuillan: I do not believe that could happen under the Bill as currently drafted. You offer a prosecutorial fine. If that is paid, it is the end of the matter. I do not think that there could be a twin track of prosecution plus fine.

The Chairperson (Mr Givan): I am trying to think of the type of cases where you need to go to court to get penalty points. I got penalty points, and I did not need to go to court for them.

Mr C McQuillan: There is a range of cases that the police dispose of —

Mr Elliott: Resign.

The Chairperson (Mr Givan): It was long before I was Chair of —

A Member: Major disclosures.

A Member: It is good you clarified that, Chair.

Mr McCartney: It could be a resignation matter.

A Member: We are not going on that subject.

The Chairperson (Mr Givan): They are now spent. I have served my time, so surely I am allowed to continue.

Mr Frew: I think you would find that you would not have a Committee if you went down that road.

Mr C McQuillan: There is a range of offences where the police can issue fixed penalty notices without you having to go to court, and that would be the sort of thing we are talking about: no seatbelt or low-level speeding cases. Then there is a range of cases — sometimes the same cases, if somebody has already had a fixed penalty notice — where the police choose not to impose the on-the-spot fine where you send your licence off and get the points on it, and they send them to us for prosecution. At the minute, we only have the option of prosecuting the case through the courts. We have some non-court diversions, but generally, where points are involved, because points should be imposed for those offences where they are mandatory, our only option is to prosecute that through the courts. There are a large number of cases that go to court for relatively minor road traffic offences. Of course, if somebody denies the offence, they are entitled to go to court to defend themselves and to be acquitted, if that is what the court decides. However, there are other cases that come in to us at a relatively low level, and those are the sort of cases that we are looking at: those that, at the minute, we send to the courts, and the courts impose a relatively modest fine and the mandatory points. We envisage that those sort of cases could be taken out of the court, thereby saving court time and prosecutor time and allowing everybody to dispose of the case quickly. Those are what we have in mind.

The Chairperson (Mr Givan): I pleaded guilty early and avoided a court case.

Mr Frew: We can not be talking about many cases. If you are not going to take your penalty points off the police officer, in effect, and their hand is forced to send it to the PPS, the offender is not going to then say, "OK, you give me them, then."

Mr C McQuillan: No, sorry. The guidance that I mentioned earlier that we will issue will really try to target those cases where we believe that they will be accepted. If somebody has denied the offence, we do not believe that there will be much reason, really, to offer them penalty points if they have already been offered a fixed penalty notice by police and refused it. There is a class of cases in which they are not offered a fixed penalty and that the police send to us where the person has not turned down a fixed penalty notice or is not denying the case. They just have to come to us, maybe because of previous disposals. For instance, if the police do not believe in their fixed penalty notice — which is, I believe, £80 — and three points for certain offences, they may feel that the case is too serious. Or perhaps the speed was too high in a particular case, so they will send it to us. Those are not cases where we can necessarily say that the individual would refuse the offer of a prosecutorial fine.

Mr Frew: There is a groundswell of opinion that I am aware of, from people coming into my office, that sentencing around this sort of low-level crime can be very lenient. How would you, as the PPS, guard yourself against that accusation if you were administering points?

Mr C McQuillan: If we were administering points or, indeed, fines without points, we would be very conscious of the fact that we are, if you like, not imposing a sentence, because only courts can do that, but that we are imposing a penalty for wrongdoing. The guidance that the director would issue, and which we would consult on, would assist prosecutors when they were assessing what to do with any case, whether it was a simple prosecutorial fine case or if points were made available. It would attempt to achieve consistency amongst prosecutors, who would take heed of this guidance.

Mr Frew: So that guidance would basically fix it for you, or would you be able to —

Mr C McQuillan: One of the things that we will consider when we are drafting the guidance is whether there should be bands of fines, fixed fines or how flexible the regime will be. A magistrate who hears a case has quite wide discretion, and we will seek to achieve consistency. To give guidance to our prosecutors, one of the things we would consult on is how much flexibility there should be within the fines scheme. It may be that, as I say, there are bands or particular amounts and particular considerations.

Mr Frew: You state in your paper:

What does "appropriate cases compensation to an offender" mean?

Mr C McQuillan: At the moment, the Bill provides that, in cases of criminal damage, there is provision to make an offer of not only a fine but a compensation order. It is restricted to those cases where there has been damage. Very often, if there is an offence of criminal damage, a window will be broken, and that window will cost £100 to fix, or however much it costs. When a court deals with that case, as well as imposing a penalty on the person who is guilty of the offence, it will make a compensation order — a restitution order, as it is often called in court — for the amount of damage. The Bill, as it stands now, allows for there to be a compensation order with a prosecutorial fine in those cases.

Mr Frew: It allows that at the minute.

Mr C McQuillan: It does.

Mr Poots: Why are penalty points for motoring offences always done in bands of three? Why can you not get two points, four points or five points? They always appear to be in threes. You could be doing 34 in a 30 mph zone and get three penalty points; you could be doing 44 in a 30 and still get three penalty points. If you do 46, then you go up to six.

Mr C McQuillan: There are certain offences that do not carry a band of points; they just carry points. In answer to your question, I do not know off the top of my head why they tend to be awarded in threes. I could —

Mr Poots: Elsewhere, it is done differently.

Mr C McQuillan: I do not know. Personally, I am speculating, but I do not think that it has to be in threes. My experience in practice is that it does tend to go up in threes, but I cannot answer why that is.

Mr Poots: So, if someone had had three offences over two and a half years and was caught doing 35, there could be the discretion to give them two points.

Mr C McQuillan: No, there is a minimum of three points.

Mr Poots: Yes, I know there is a minimum of three points, but that discretion could be brought in if you really wanted to.

Mr C McQuillan: If points were made available to us, it would have to be on the same basis that they are available to the courts. I do not think that we would seek to have it on any other basis.

Mr Poots: I am just talking about the system in general.

Besides that, I had a particular interest, in a previous role that I had, in having fixed penalty fines brought in for people who behaved in particularly bad ways. I am thinking of key workers here, whether it be people who abuse Fire and Rescue Service workers, ambulance drivers, nursing staff in our hospitals or, indeed, police, and I am talking about the more moderate cases. I think that it is an opportunity to nip some of this stuff in the bud before it gets out of hand. If someone did come into a particular place — an emergency department or, indeed, an emergency vehicle — and kick off, they would be told immediately that there was a fine system in place, and that it would be instituted if they did not settle themselves down. If their behaviour goes to another stage, obviously it should be prosecution. I think that a lot of people are not prosecuted because people do not want to go through the prosecution process, but they should be punished because of their behaviour, and there should be zero tolerance for this. Is there, in your view, an opportunity in the Justice Bill to do something on that front?

Mr C McQuillan: It would depend on what the behaviour was. If the behaviour was —

Mr Poots: Foul language.

Mr C McQuillan: If it was perhaps defined as disorderly behaviour, which it could be if it was in a public place in the hospital, that is the sort of case in which we anticipate using prosecutorial fines.

I should say that, in offences, even low-end offences, the involvement of public-service workers is an aggravating factor as far as we are concerned. Even though we could impose a prosecutorial fine, we may seek to prosecute through the courts because they also take a serious view of offences involving public-service workers in the health service and elsewhere.

Mr Poots: I want to know whether that is possible rather than your opinion.

Mr C McQuillan: It is possible.

Mr McGrory: We could deal with it in the guidelines. It would be an aggravating factor that prosecutors could take into account in determining whether that was an appropriate disposal in the circumstances; I agree, Mr Poots. We can certainly look at that.

Mr Poots: For us to do something about that, we would not need to do anything with the legislation. It could flow from the legislation.

Mr McGrory: It provides for that, yes.

Mr Poots: Thank you.

The Chairperson (Mr Givan): I welcome the PPS's welcome of the victims and witnesses aspect and the ongoing work of the victim and witness care unit. Barra, are there any implications for the unit as a result or the budget pressures that you face?

Mr McGrory: Not this year. We intend to protect it as much as we can. As you know, it is jointly staffed by the police and us, so we do share the whole burden, although both are located on PPS premises. As things stand, there are no specific pressures on it, but that is not to say that something different might occur as a result of the forthcoming discussions on reallocations to the various Departments, of which we are one. It might not come under pressure — let us put it that way — but we are in discussion with DFP, as every other Department is at the moment.

The Chairperson (Mr Givan): You had no comment to make on the criminal records aspect, and no member wishes to ask about that.

The PPS welcomes the provisions for live links. Do any members wish to ask about that?

Mr McCartney: We heard last week from a number of bodies, and there was some concern about the use of live links for children. Do you have an opinion on that?

Mr C McQuillan: The guardians of the applications for live links and the rights of people subject to them will be the courts, and they have particular regard for the rights of young people, as do we when dealing with young witnesses and young defendants.

Mr McGrory: It will probably be to their benefit, Mr McCartney, and is to be welcomed in that regard.

Mr McCartney: One of the points made was that people who are distant from something may not fully grasp what is happening. I accept what you are saying and that, in some settings, the cross-examination of a young witness is better done via a live link. However, in some cases, when young people are not in the room, they may not get the gravity of what is happening around them.

Mr McGrory: Not only that but prosecutors prefer witnesses to be live and want the jury to see and hear them first-hand. However, that, too, is a balancing exercise that has to be engaged in by the court and the lawyers involved in an attempt to get the best evidence, which is the principle on which these decisions are made. It is all balanced out, but I think that it is a useful provision.

Mr McCartney: Finally, the Law Centre or the human rights people made a point last week about the first remand hearing being by live link. They said that there should be a protection and that that should happen only if a person has had legal advice; not if they have had no legal contact prior to the first hearing. Do you have an opinion on that?

Mr McGrory: It is in our interests that all defendants get legal advice at every stage, so we have no difficultly with that.

Mr Lynch: My point was the same.

The Chairperson (Mr Givan): No members want to raise questions on the violent offences prevention orders, so we move on to the miscellaneous element and early guilty pleas.

Mr McCartney: I note that, in your presentation, you expressed reservations about who should make guilty pleas and when. We will look at this as more witnesses come before the Committee to discuss the Bill. In the interests of justice, people should do the right thing at the right time.

I have a concern that someone might not know the difference between actual bodily harm and grievous bodily harm and could plead guilty to grievous bodily harm, whereas, if it was contested and went to trial, the charge could be reduced to actual bodily harm and attract a lesser sentence. Someone could be unwisely put in the position of making a decision at the wrong time. What protections can we put in place to ensure that that does not happen?

Mr McGrory: Legal advice. If the defendant has his or her legal adviser available at the point at which the decision on the plea is being made, which he or she really must have, there should be no issue. There should be no difficulty with pressure; it is a gentle indication that, if they intend to plead guilty at some point, it would be better to do so early.

Pleas should not come before the point in the proceedings at which all the material is available. I have no difficulty with that. However, it should be available by the time of arraignment. Those safeguards can be put in place.

At the moment, all practising criminal lawyers know that defendants will benefit from an early plea. I am concerned that, in the case management or procedural structures, there is no real focus on that and no driver or trigger to focus the mind on that. Really, what we are trying to do is to put something into the system to focus defendants' minds on an inescapable fact of the law: if they are going to plead guilty to an offence, they will do better with their sentence by doing so earlier than by leaving it until a later stage in the process.

There are too many reversals of pleas in the statistics to ignore the fact that we could do something to avoid them. Like everything else, it has to be balanced and weighed against the rights of individuals, and you certainly would not want to do anything that put anybody under undue pressure. I could not agree more. However, I think that the proposed measure does not quite get there.

The Chairperson (Mr Givan): You touched on the statutory provision for additional discount.

Mr McGrory: At the moment, no specific statutory provision requires a court to give a discount for an early guilty plea. There is a statutory provision that requires the court to take into account the stage at which the plea is given, but maybe consideration could be given to a statutory discount that the court must give. I do not think that I mentioned that in my opening remarks. Some might argue that that gets closer to putting pressure on a defendant than they would like, so I am not necessarily advocating that. Rather, we were advocating that there be points in the process that require a defendant and his or her advisers to address the fact that, if they plead not guilty and change their plea to the same offence later, they would be at serious risk of receiving a longer sentence.

The provision of requiring solicitors to give the advice is unlikely to be effective. Solicitors ought to give that advice anyway, and it would be difficult to police, so why not bring it upfront in the court process? As I said, it should be an advocate rather than a solicitor who does that, as it lets counsel off the hook by putting the pressure on the solicitor and not the advocate at the point of the plea. I do not know why the responsibility was put on solicitors' shoulders. I certainly do not think it should be for the prosecution to do.

Mr C McQuillan: Our written submission refers to the success of schemes in England and Wales, where a very early guilty plea has allowed cases to go to the Crown Court very quickly. This Bill provides for that where there is an indication of an early guilty plea. That has proved a great success in England. Even before the arraignment, where early guilty pleas are indicated, as the Bill provides for, that should be recognised.

The Chairperson (Mr Givan): For clarification, Barra, did you say that it was at the point of arraignment that 28% of defendants who plead not guilty then plead guilty?

Mr McGrory: Subsequently? That is among the 2012 statistics in the consultation document.

The Chairperson (Mr Givan): At what point do the 28% change their plea? Is that before the trial commences?

Mr McGrory: It could be right up to the day before the trial. The problem for the prosecution is that, once a not guilty plea is entered, we have to be ready to run that case, so it triggers considerable preparation that could have been avoided had the plea been entered at the earliest opportunity. That applies to a significant volume of cases.

The Chairperson (Mr Givan): So all 28% who changed their plea did so before the trial; not when the trial had started.

Mr McGrory: I am afraid that I cannot tell you whether some changed their plea a week later — well before the trial — or some did so at the door of the court. Obviously, the later the change, the more work done by the Public Prosecution Service. The paperwork and other preparatory work triggered by the entry of a not guilty plea are considerable. Counsel have to be instructed and then start preparing the case. We have to prepare papers and go through a disclosure exercise. All of that work on cases could be avoided by an early guilty plea. I do not think that we do as much as other jurisdictions on that point.

Mr McCartney: Could we see a breakdown of the statistics? Is there a scenario in which people face a more serious charge and then plead guilty to a lesser charge?

Mr McGrory: We will try to provide that. I think that the statistic that I gave you was for the same charge.

Mr McCartney: OK.

Mr McGrory: I will check that, Mr McCartney.

The Chairperson (Mr Givan): You are saying that, around the point of arraignment, there needs to be a much greater onus on the advocate, on behalf of the defendant, to engage in the early guilty plea. I want to tease out the responsibility of judges to ask advocates whether they have spoken to defendants about that, or could there be a double lock of both advocates and judges reminding defendants?

Mr McGrory: I would prefer the double lock: a judge simply asks an advocate whether he or she has given the statutory advice. That is all that a judge need do. That would concentrate the mind of advocates, and it is a statutory requirement. A lot of judges do that anyway at arraignment. In fact, one judge has put up all over his court inescapably obvious notices stating that, if you plead guilty now, it will be beneficial in the long run. However, not all judges do that. I am not in any way being critical of judges. I am just saying that, if we put in place the requirements, there would be consistency across the board. In our view, it would help.

Mr Elliott: I was going to ask Mr McGrory about the Law Society's assessment that it should be up to the Public Prosecution Service to advise clients, but that has been answered. To what extent are the views of the victims taken into account in the discount option for an early guilty plea? How much account do you think should be taken? I think that, quite often, the victims are set aside in the process. Victims have come to me and said that they did not have the opportunity to have their day in court and explain what happened.

Mr McGrory: There are provisions in place for victim impact reports to be made available to courts during the sentencing process. It is difficult to see how the victim could be engaged in the decision to plead, which is really the defendant's decision. There are other issues with the representation of victims.

Mr Elliott: I am thinking about the level of discount that is available.

Mr McGrory: If a defendant decides to plead guilty at the earliest opportunity, having been reminded of all of that by the lawyer, the court and so forth, obviously, the judge would have to weigh in the balance the level of discount given by that early plea and whether or not that early plea was really forced by overwhelming evidence or otherwise against the interests of the victim in terms of the sentencing principles. I think there is enough there to balance that out, Mr Elliott.

Mr Elliott: There are no more safeguards that can be —

Mr McGrory: I do not think so; not that I can think of.

Mr C McQuillan: One of the reasons why a discount is given for an early plea is that it takes from the victim the concern that they may have to give evidence in a case. That has been recognised, and victims have said that the prospect of giving evidence is one of the things about the criminal justice process that they find difficult, so taking away that concern is —

Mr Elliott: Although there are some victims who have said, "I have not got my day in court. I would like to have stood there in front of that person who caused damage to me and my family".

Mr C McQuillan: In addition to victim impact reports, we now have victim personal statements, since the start of the year.

Mr McGrory: I would say, though, that, if you were to canvas most victims, the relief of not having to give evidence —

Mr Elliott: I totally accept that.

Mr McGrory: — would outweigh the desire to face the other person in court. The prosecution frequently relays to the court the level of relief to the victim. In particular types of case — most notably sex abuse cases, but it applies to all sorts of cases — the degree of relief can be much higher.

Mr Elliott: Thank you.

Mr McGrory: A point has occurred to me that I forgot to mention earlier on the committal point. Do you mind if I mention it, Mr Chairman?

The Chairperson (Mr Givan): I will finish this section and then come back to committal, if that is OK.

Mr McGrory: Yes.

Mr Frew: I just want to go back to the prevention orders, Chair, if that is OK. Do you have a view on the debate around under-18 or over-18 with regard to the allocation of violent offences prevention orders?

Mr C McQuillan: I do not think we do, no. It is really a matter for

Mr Frew: With regard to the domestic violence protection orders in the rest of the UK, do you see a need for a specific prevention order for domestic violence?

Mr C McQuillan: One of the things that we saw — I tried to reflect it in the document — is that violent offences prevention orders seem to be suitable in certain domestic violence cases if they meet the qualifications for those, because they might provide that extra protection for a vulnerable victim, which is so often the case in domestic violence cases. Whilst we do not have a view on whether the English scheme should be expanded, that is one of the reasons why we welcomed their introduction as a further means of protection for victims.

Mr A Maginness: First of all, apologies; I had to attend talks down at Stormont House. I want to ask the director about early guilty pleas, is that permissible at this stage?

The Chairperson (Mr Givan): Yes, that is the section that we are finishing.

Mr A Maginness: OK. Clauses 77 and 78. I do not know if anybody else has asked this question but the Law Society —

Mr McGrory: We may have dealt with this.

Mr A Maginness: I am sorry if I repeat this.

Mr McGrory: Not at all.

Mr A Maginness: The Law Society has suggested that the Bill be amended to place a duty on the PPS to notify the client of the discount scheme for earlier guilty pleas as part of their duties in relation to summonses, charging procedures and disclosure. Have you any view on that?

Mr McGrory: Yes.

Mr McCartney: We all know.

The Chairperson (Mr Givan): To be fair, we did not tease out exactly why, because I am pretty accepting of what —

Mr A Maginness: You are kinder to me than the vice-Chair.

Mr McGrory: I do not think that it would make a dot of difference whether the prosecution includes in the summons, charge papers or committal papers a clause that reminds the defendant of the potential benefits of pleading guilty early. It really is their responsibility. We could not do it any other way because, if we were to try to approach them, we would be held accountable for interfering with the Law Society's clients. It is really a function for their own lawyers, advocates as well as solicitors. I have suggested that the court could play a role in this as well.

Mr A Maginness: Of course, they say that it is not really appropriate for us to do that.

Mr McGrory: Well, the legislation puts the responsibility solely on the shoulders of the solicitor, which, I agree with the Law Society, is not quite right in a number of respects. The burden should be shared between the solicitor, counsel and the court, frankly. I do not really think that it is a matter for the —

Mr A Maginness: Should it just simply be an obligation placed on the court?

Mr McGrory: I have mooted that.

The Chairperson (Mr Givan): We want to wrap up the meeting. You wanted to mention committal.

Mr McGrory: It is only a minor point on the committal issue. It is a double-edged point really. One of the benefits of automatic or straight referrals to the Crown Court in all indictable cases is that the management at the early stages of the case will then be carried out by the court of trial rather than the lower-tiered court. Now, that will have advantages and disadvantages. Obviously, in the current state of affairs, a lot of time is spent at the Magistrates' Court case waiting for materials to come from the police and for the prosecution to make the decision to prosecute in cases that have been immediately charged. There might be a view coming from certain quarters that, by elevating the management of the cases at that stage to the higher tier, you put a burden on the Crown Court that it would rather not have. I think that the benefits, though, would outweigh the disadvantages because it would concentrate the minds of all of those preparing the papers much more stringently if the court of trial is the court putting on the pressure with regard to progress. In the longer run, while there would be teething problems, it would be beneficial. That is just a minor point that I neglected to mention.

The Chairperson (Mr Givan): Finally, you had mentioned the right of audience issue and said that currently only self-employed lawyers have that and that, once you become an employee, you lose that right of audience. Are there any clear reasons why that has been the case? What is the historical reason for that change once you become employed?

Mr McGrory: I will articulate as best I can my understanding of the Bar's reasoning. Mr Maginness might be in a better position if he agrees with it. It is that the self-employed Bar carries a degree of independence over and above that of barristers who are employed, whether they be employed by the Public Prosecution Service, the Attorney General or some other body. I would draw a distinction between barristers who work for, say, a company — as legal adviser to Norbrook or an insurance company or something — and lawyers who are in daily practice in the courts, like those who work for the PPS. The Attorney General would like to include his lawyers in that as well. I think that a distinction can be drawn.

As we progress, more and more barristers may seek to become employed barristers. The PPS is a classic example. We have a mixed economy between employed lawyers going to court and members of the Bar whom we instruct through the panel system. I would like to increase the number of employed lawyers whom we send to court, but I am inhibited from doing that because they do not have as good a right of audience. In my view, there is a bit of a turf war going on here, a bit of protection. I do not want to say that it is anti-competitive, but the reality is that that is what is happening. The less we are able to send our lawyers into the higher courts, the more we have to use the Bar. I have no axe to grind with the Bar other than I think that it is an uneven playing field when it self-regulates in a way that restricts the right of audience of the lawyers who are in my employment.

The Chairperson (Mr Givan): So, those who are employed by the PPS or indeed the Attorney General's Office could be utilised more.

Mr McGrory: Absolutely.

The Chairperson (Mr Givan): Are they currently then not being fully utilised in a way that —

Mr McGrory: Absolutely. I have 160 lawyers, many of whom are barristers. They have a right of audience up to the Crown Court, but they cannot go into the High Court or Court of Appeal. That is an inhibiting factor. Now, I have now created an in-house advocacy tier at the higher level, so they go into the Crown Court, but they are not allowed to do their own appeals because of the Bar regulations. That then affects the way in which I can use them. The Bar also recently moved to ensure that those lawyers do not wear the barrister robing and so forth as well in any court, which, again, sends out a message that is discriminating against employed lawyers. I am very disappointed by that. I would certainly join the Attorney General in asking that consideration be given to statutory intervention there.

The Chairperson (Mr Givan): OK. Thank you both very much for coming to the Committee. It is much appreciated.