Official Report: Minutes of Evidence

The Chairperson (Mr Givan): Joining us today is Arleen Elliott, the junior vice-president; Alan Hunter, the chief executive; and Peter O'Brien, the deputy chief executive, all from the Law Society. You are all very welcome to the Committee. As normal, the meeting will be recorded by Hansard and a transcript will be published in due course. We will follow the same format as before. I will open it up to you to briefly take us through your submission and then we will ask questions based on the relevant sections that you have commented on. If members are clear, I will hand over to you, Arleen.

Ms Arleen Elliott (Law Society of Northern Ireland): Thank you very much, Chairman. I appreciate that the Committee has had a very long afternoon, so I intend to make just a couple of opening comments and maybe just go on to specific sections if everybody is happy with that.

Overall, the society is broadly supportive of the Bill and many of its provisions, including the portable criminal records disclosure, expansion of live video links where appropriate, introduction of violent offences prevention orders, the victims and witnesses charters and the abolition of the upper age limit for jury service.

I will start with matters that we have specifically responded to in writing, the first being that of single jurisdiction for the County Court and Magistrates' Court business. We are generally supportive that the Lord Chief Justice may distribute and transfer business across the administrative court divisions to allow greater flexibility than exists at present. However, I think that Mr Frew and Mr McCartney mentioned the issue of how you balance that in a measured way so that effectively there is not inaccessibility to courts for victims, witnesses and defendants. I suppose the easiest example of a scenario that might arise would be a youth court, which could easily be established perhaps in Belfast and would require ultimately young people from around the country to travel to that court in Belfast. Whilst I suppose that, on the one hand, that would be very cost-efficient for the Court Service, it would be very difficult for young people to make those travel arrangements. It can result in adjournments and consequent costs in respect of the legal aid fund and other areas. I suppose that, overall, the society's suggestion, in essence, is that the provision be strengthened to allow that, where the Lord Chief Justice or the Department, where relevant, makes directions in respect of the administration of business, that it is balanced or, certainly, in the exercise of those directions, the decider takes account of accessibility for court users.

It also seems a matter of practical common sense that, in any reappraisal or redrawing of administrative boundaries, there is consideration or learning gained throughout that period in respect of how accessible courts have been to their respective users, to better transfer business around Northern Ireland.

I have a couple of more minor points in relation to the drafting. First, in respect of clause 3(7), I would think it sensible for a provision to be provided that required the Department, in making any directions in respect of the administration of its business, to consult the Lord Chief Justice. You would not want the Lord Chief Justice to make directions in respect of where court business goes and the Department perhaps taking a different view.

Finally, another point of detail is in respect of clause 5(2), which details that justices of the peace be appointed by the Department by instrument. As I understand it, justices of the peace had carried out effectively judicial functions that lay magistrates have carried out since 2002. It seems to me that, if there are justices of the peace still in existence and still carrying out some sort of judicial functions, their appointment should be made by the Northern Ireland Judicial Appointments Commission (NIJAC) and not by the Department, as would be normal. If there are any questions in respect of that section, I will do my best.

The Chairperson (Mr Givan): Do you want to take us through the rest of your sections, and then I will come back to each section, if that is OK?

Ms A Elliott: Yes, if that is more convenient.

In respect of the abolition of preliminary investigations and mixed committals, you will see that clauses 7 and 8 provide for abolition of, essentially, oral evidence being provided. I think that the Committee is very au fait with the fact that the presenting of oral examination is, on the whole, unusual. There have been 93 over a three-year period from 2011 to 2013. Of those 93 preliminary investigations (PIs), 16 did not proceed to trial. I take on board what Mr McGrory has commented in respect of that, and I am most aware of how difficult it is for witnesses to have to give evidence twice, in essence, but there is an element of sifting, if you like, that will prevent cases that should not really proceed — sifting them out at an earlier stage — and thus avoiding what may be an expensive and unnecessary trial. A more measured approach would be if the district judge had limited discretion to allow the calling of key witnesses where he believes that it is in the interests of justice to do so. That would still allow some element of safeguard but would mitigate any risk that the call for a mixed committal is not abused.

I was also very interested to hear Mr McGrory's comments in relation to the abolition of a committal — that, if you simply abolished a committal, it would effectively reduce delay, put greater pressure on the Public Prosecution Service and would bring cases on more quickly and more efficiently. If that is to be the case, there has to be a fair procedure within that structure to ensure that the defendant is ultimately aware of what case he is actually facing. The way the committal works at the moment is that, from when a defendant enters the Magistrates' Court to when he effectively leaves it at the end and is committed to the Crown Court, the prosecution gathers its evidence and the defence waits to see what might emerge at the very end of that process. When you get to the stage of committal, papers are served so that the defendant is actually aware of what case he faces. From the prosecution's point of view, if you like, the evidence from the prosecution has effectively been completed. The committal procedure itself is to confirm that there is, on the face of it, a case to answer, and, at that stage, the case is moved forward to the Crown Court. So, whether you abolish the use of the word "committal" or seek to put in a different procedure, I think that you have to be sure that, whatever procedure is put in place, it ensures that the defendant is aware of what evidence he faces. I noted with interest Mr McGrory's comments that maybe that could more effectively be carried out in the Crown Court than in the Magistrates' Court. I cannot really comment on that. I think that you would have to look at the respective costs and look more deeply into the elements of delay. Certainly, it would be perceived that much of the delay that arises in prosecution cases is often where the police are gathering evidence and forensic evidence has to come in. All those types of issue are rarely swift.

I move on to prosecutorial fines. In essence, the society has no particular objection or otherwise. They are essentially another element in the armoury of discretionary disposals that help to get rid of business in a manner that helps to ensure that court time is not ineffectively used. I have a couple of points on how the procedure works. The first is that, when a notice of offer is issued, there are 21 days for the defendant to indicate his acceptance of that notice. I think that care has to be taken, or consideration given, to the 21-day period taking effect from the point of service, rather than the point of issue, because you could have a scenario where the Public Prosecution Service is essentially issuing a notice of offer but the defendant has moved away, is in hospital or is incapacitated. A number of different things could occur so that the person is actually not aware that the notice of offer has been issued. I think that the Committee might want to take that on board.

Another element in respect of the prosecutorial fines is an extension of time to pay. Essentially, there is a sum of up to £200 that the public prosecutor can effectively detail as the appropriate amount that is payable. There is no provision in the legislation that allows for any extension of time to pay that. That would not reflect the current situation, if somebody is fined as a result of appearing in court. The defendant, at this time, can, if he shows that he is of limited means, look for an extension beyond four weeks. I think that that is something that should be embodied in this clause.

Another element in respect of this clause is in relation to the enhanced sum. The enhanced sum is the amount that becomes payable in the event that somebody does not meet the fine on the face of the prosecutorial notice; but the enhanced sum is calculated as being one and a half times the amount of the prosecutorial notice, and that does not take into account that somebody may actually have paid a part of it. Potentially, you could have a scenario where somebody has paid 95% of the prosecutorial amount but has not been able to pay the last 5%; and, if the prosecution ultimately proceeds to have that registered, it would be the entire amount plus one and a half times. So, I think that, in view of section 75 equality issues, the Committee might want to consider recommending a change to that.

In general, in respect of discretionary disposals, I understand that the Criminal Justice Inspection is looking at how discretionary disposals are being utilised. I know, Mr Frew, that you raised the issue of when those disposals are utilised. I was interested to hear that the Public Prosecution Service is basically saying that there will be guidelines on how those notices are utilised. I suppose that, in all, care has to be taken that these notices are not considered something akin to paperwork; there are only so many that any person can actually receive before they lose all credibility.

I move on to early guilty pleas. In respect of clause 77, the court is basically obliged to give an indication of what sentence that judge would have given had the defendant pleaded guilty at the "earliest reasonable opportunity". I query two things in respect of that: first, the point of the exercise. The most likely consequence, I think, would be an increase in appeals on sentence, where you may have a defendant saying that he should be given the lesser sentence because he was not appropriately advised at the earliest reasonable opportunity to duly plead. The second issue that I have is, obviously, how you determine when is the "earliest reasonable opportunity" to plead. You will have heard Mr McGrory discuss a number of different time periods that may be considered as the earliest reasonable opportunity. It is difficult, I think, to be very prescriptive about that because every case is different. It very much depends on the evidence that the defendant may have been aware of.

Aside from all those very practical issues, I think that it is also very difficult for a judge to say categorically what sentence he would have given had the person indicated a plea, say, six months ago, because, invariably, the circumstances will have moved on. The defendant may have shown no remorse, in which case it is unlikely that there would be any discount; the defendant may have made reparations; or there may be mitigating factors. The Probation Service's view would obviously have been sought on whether this person is a risk to the public and whether there is a continuing risk. All those things make it an art, rather than an exact science. So, for a judge to be definitive about what sentence he would have given six months ago would be a very difficult task.

In respect of the duty of a solicitor to advise a client about early guilty pleas, I am in agreement with Mr McGrory that it does not make sense that the burden, if it is to be made a statutory obligation, sits with the solicitor only. It seems to make more sense that it is with the solicitor advocate, the solicitor or the counsel. In any event, I think that it is wrong in principle that a statutory obligation is put in place for a solicitor to advise the client in respect of an early guilty plea. At present, a solicitor's duty is to advise the client in their best interests, and that duty is ongoing. In criminal cases, it usually commences in the police station. When a solicitor is fully informing their client and giving proper advice, that solicitor needs to be aware of exactly what case is facing the client and to be fully au fait with the entirety of the circumstances. That, ordinarily, does not come to light until some considerable time down the line.

In the procedure as it is at the moment, the defendant starts in the police station, moves into the Magistrates' Court and continues to the point of committal.

At the point of committal, primary disclosure is effectively provided by the prosecution. That primary disclosure is basically the evidence that the prosecution is holding that would make a prima facie case to answer, but it is no more than that. Then, when the case has shifted to the Crown Court, you are into a circumstance where the defendant is arraigned, and, at that point, he has to determine whether he will plead guilty or not guilty. If he does not plead guilty, he has to make a defence statement and, on the basis of that statement, he makes an application for secondary disclosure. It is the information that is provided at that stage, which the prosecution may be holding, that would actually undermine the defendant's case. So you are a considerable number of steps down the line before you are aware of the evidence that is held by the prosecution against the defendant and the evidence that the prosecution may hold that would undermine the defendant's case.

Determining when the earliest reasonable opportunity arises is quite a difficult task. It seems to me that, perhaps, the easiest way of dealing with it is the judge giving a warning in respect of it, and, as you have already heard, that is really what happens on a common basis.

In respect of the case management provisions at clauses 79 and 80, you have already heard Mr McGrory mentioning that the Lord Chief Justice has issued practice directions in relation to case management. That is correct and as it should be. There is a duty on all of us to make sure that there is as little delay as possible. It also seems incorrect that the clauses provide that the Department make those regulations. That is usurping the judge's judicial function, and clauses 79 and 80 should refer to the judge issuing those practice directions.

Finally, in relation to the public prosecutor's summons, I have to confess that I am not entirely sure to what extent the issuing of the public prosecutor's summons reduces delay. However, Mr McGrory has given evidence that, in his view, it will reduce delay. In any event, it appears that a summons still has to be laid before a lay magistrate, but it depends on what the lay magistrate can do. If the lay magistrate disagrees, it is essentially nothing. It seems a pretty toothless check, if you like.

That is the height of it.

The Deputy Chairperson (Mr McCartney): OK. Thank you very much. I will go through the running order. Have members any questions in relation to single jurisdiction?

Mr Frew: This is just on the point that I raised in the last session, and which you brought up, Arleen. It is with regard to the balance that needs to be struck for the jurisdiction. In the Bill, it states:

Can you explain to me what that means, if there is one jurisdiction?

Ms A Elliott: As I understand it, because it is a part of his judicial function, the Lord Chief Justice can effectively determine where work essentially resides around the respective courts. At present, if you commit a crime or there is a cause of action that occurs in County Down, only courts in County Down can actually hear that issue. This facility basically allows for that issue to be heard in County Tyrone or somewhere else. It is to build flexibility into the system and allow the shifting of work. In clause 2, the Department can, accordingly, make administrative changes to allow the chief clerk-type functions to be carried out in a way that would similarly be cost-efficient.

Mr Frew: So clause 2(2) is actually just tidying up the administrative side of things.

Ms A Elliott: It is more than a tidying-up, because at the minute certain functions are carried out, for instance, by the chief clerk or the clerk of petty sessions. Again, that has to occur in the relevant jurisdiction; it really cannot be shifted. Liquor licensing is one example. In Newry, the functions of the chief clerk in respect of liquor licensing have moved to Armagh — maybe they have moved to Newry, whichever way around — but, arguably, when this provision becomes effective, that entire function could take place in Laganside.

Mr Frew: I know that you do not disagree in principle with the single jurisdiction, but you seem to suggest — forgive my ignorance — that more could be done on clause 2 to tighten it up now, as opposed to waiting for guidelines.

Ms A Elliott: With a fairly simple amendment we could detail that the Department, after consultation with the Lord Chief Justice and taking into account accessibility for court users, can make X, Y and Z amount of directions. I suppose that it just puts an onus and premise on the idea that not everything should be cost-driven from the Court Service point of view.

Mr Frew: How do you get that down in writing? What will X, Y and Z look like in your opinion? What should they look like?

Ms A Elliott: I would put in "taking into account the accessibility of courts to ensure access to justice" or something along those lines. It just highlights the view that —

Mr Frew: Can you put a mileage on it, if you know what I mean? A long journey here is totally different from a long journey in America.

Ms A Elliott: Yes.

Mr Frew: How do we get robust and secure guidelines that will secure that balance, with regard to having an efficient court system and allowing flexibility? How do we get the balance on paper to safeguard that?

Ms A Elliott: If you are talking about guidelines, I would imagine that it would be for the Lord Chief Justice to basically detail guidelines. I am sure that it is something that will be done in any event, to ensure that, if there were any massive changes in respect of courts, it is done in a measured and sensible fashion.

Mr Frew: How hard is it for your members who practice in an office based somewhere in a town to go to a different County Court to practice or serve their customers or whatever?

Ms A Elliott: I suppose that it is not that it is difficult to travel, but it is the additional time spent in getting from A to B. Difficulties arise when you have defendants sent to a court that is exceedingly outside their area because they become very dependent on the public transport system. For example, the family care centre for County Down is actually in Craigavon and it covers a huge area, and you might have people from south Down or south Armagh who find it hugely difficult to get buses X, Y and Z to get to Craigavon Court at 10.30 am. Quite often, there are difficulties with people coming late or not coming at all. That obviously has a consequent impact on the court's time.

Mr Lynch: Arleen, the director said that we should go full hog and just abolish. You said that the district judge should have some sort of discretion. Can you elaborate a little on that?

Ms A Elliott: Is this in respect of committal?

Mr Lynch: Yes.

Ms A Elliott: What I am trying to suggest is a measured approach, so that there is not overkill when dealing with the concern about mixed committals. At this minute in time, you could say that the ability to call oral evidence provides a safeguard or a sifting exercise that prevents cases moving into the Crown Court that really should not move into the Crown Court — that should effectively stop dead. But I have to take it on board that it is stressful for witnesses and victims to feel obliged to give evidence twice.

I suggest that a balanced approach would be to provide some sort of discretion to the district judge to grant a mixed committal where he believes it is in the interests of justice. I would imagine that an application of that nature to a district judge would be unlikely to be frequent. As I said, mixed committals are not very common anyhow. I would similarly imagine that any district judge would take a very narrow view on the exercise of that discretion. It would be more than just "I do not agree with the contents of their statement as presented on paper"; it would have to be much more than that.

Mr A Maginness: I have just one point. First, does the common jurisdiction mean that County Court judges and magistrates really have no fixed position? What are the consequences of that?

Ms A Elliott: I would imagine that under clause 3 the Lord Chief Justice could effectively move magistrates or County Court judges around —

Mr A Maginness: At will.

Ms A Elliott: At will.

Mr A Maginness: So the County Court judge for Fermanagh and Tyrone could be notionally that, but he could be anywhere?

Ms A Elliott: I know that the movability of judges is of particular concern in continental jurisdictions, where they have the notion that to ensure the independence of the judiciary you cannot really move them from their position, because you would be subjecting them to undue pressure, if you like.

Mr A Maginness: I have asked the question before. Sorry for interrupting you. I have asked officials the question before. Has the judiciary expressed any concerns about this? I am told that they have not expressed any concerns — either the Magistrates' Court bench, district judges, or County Court judges. I do not know what the situation is, but I would like reassurance from the Department that the position is that they are not concerned about this and are quite happy that they can be moved about at will and have notional titles or maybe no titles whatsoever, which I think would be regrettable. That is by way of comment.

I take the view that mixed committal proceedings should remain and — I agree with you — be at the discretion of the district judge or magistrate. It is a good way of weeding out bad or weak cases, where the evidence is questionable. There should be an opportunity for the court to hear that evidence and deal with it. Would you agree?

Ms A Elliott: Absolutely.

Mr A Maginness: Vulnerable witnesses, particularly women who may have been the victims of sexual crime, should not be forced to give evidence in circumstances where this gives rise to trauma or retraumatisation. That should be made very plain. Would you agree with that?

Ms A Elliott: I do not disagree, but I think that a very narrow approach can and should be taken to the exercise of any discretion by a district judge, if he were minded to agree that oral evidence be provided

Mr A Maginness: You referred to 93 PIs over three years.

Ms A Elliott: From 2011 to 2013.

Mr A Maginness: That is roughly 30 a year. How many PEs have there been?

Ms A Elliott: In the last year, there were roughly 1,600.

Mr A Maginness: In any event, you are dealing with a small number of cases?

Ms A Elliott: Yes.

Mr A Maginness: That leads me to a question that you may be able to answer. Do you have any observation to make about where the savings are in time, avoided delay or cost?

Ms A Elliott: It is the Department's view that the Bill may improve the administration of justice, but I do not believe that it sees it as producing cost savings as such.

Mr A Maginness: Thank you very much. There are other issues that we will come to.

The Chairperson (Mr Givan): Yes, there are.

Mr A Maginness: Thank you, Chair.

The Chairperson (Mr Givan): We started with single jurisdiction issues and then moved on to committals.

Mr McCartney: I will follow on from Alban's point. Your position is that committal proceedings should take place only at the discretion of the district judge.

Ms A Elliott: That is for mixed committals. I was interested to hear Barra McGrory advocating that committals be abolished in their entirety. Whilst I have no objection to the word "committal" being abolished, a fair procedure still has to be in place to ensure that the defendant is aware of the case that he is ultimately facing.

It is very hard to get around the procedure that has built up over the years. Effectively, a serious case ends up in the Crown Court. In essence, the prosecution's case is put together when you are at the Magistrates' Court stage. Whether you get rid of committals or not, there has to be a fair procedure to ensure that the defendant knows the case that he is to face.

Mr McCartney: What sort of system should we have in place to ensure that it is fair? Some of these cases can just be the serving of papers; there is no real examination, but we move on. In some cases, there might be a need to examine the strength and quality of the evidence. The fact that something might have been built up over a number of years does not preclude the need to change it.

Ms A Elliott: No, absolutely not. As I read the provisions in the Bill that allow direct committal for murder and manslaughter, it still appears from the body of the clauses that the prosecution must serve its papers at the end of that person's appearance in the Magistrates' Court.

You still need a process so that the defendant ultimately has a block of papers, and the legal representative can look through it and give advice accordingly. I do not really know how you dispose of that in a manner that ensures that a defendant can actually meet a case.

The Chairperson (Mr Givan): How do you answer the charge that Barra made: why have it twice?

Ms A Elliott: I think that Barra was making a point about the position whereby someone might have to give evidence twice. I am firmly of the view that, if somebody gives oral evidence, that should be at the discretion of the district judge only and should be very limited. In response to Barra's comment on why somebody needs to get papers twice, you get your primary disclosure at the end of the case in the Magistrates' Court, and, when you move to the Crown Court, you are predominantly served the same set of papers, plus the charge sheet on which you will be arraigned. Perhaps there is a method of doing that in a simpler fashion and not duplicating paperwork. However, a defendant still has to be aware of what he is ultimately facing.

The Chairperson (Mr Givan): What about the 93 PIs? There are so few. If PIs and PEs are so fundamental to fair trials, why is everybody not engaged in them?

Ms A Elliott: It is not fundamental in every single circumstance. In the vast majority of cases — you heard the figure of 1,600 — it will be evident from the papers that are served that there is a case to answer. So there are very limited circumstances in which, as a legal representative, you need to go beyond that and raise oral evidence at that stage. It is used infrequently, but what I am saying is that it is not abused. That is my point. If it provides a safeguard in getting rid of cases that really should not be going forward, I do not see a need to get rid of it.

Mr Poots: How would you make it more efficient?

Ms A Elliott: In relation to everything?

Mr Poots: I asked Mr McGrory about three principles. I asked whether it would diminish equality, and he said that it would not; I asked whether it would improve efficiency, and he said that it would; and I asked whether it would be more effective, and he said that it would. So you have come along and said that what he says does not stack up. So how would you make it more efficient? It is not good that it takes eight to 10 weeks to go through. That is not effective, and I assume that there are more effective systems in other jurisdictions that you have studied and that you will be able to give us something on that.

Ms A Elliott: I cannot say that I have studied enough to be able to say whether anybody else is doing it significantly better than us. I think that, by and large, the Public Prosecution Service gave a very measured account to the Justice Committee of efficiencies and delays. I was equally interested to hear that, in the PPS's view, if you got rid of committal, it would reduce delay by six to 10 weeks. I think that that is what Mr McGrory said. If you are getting rid of the word "committal", you still have to ensure that a fair process is in place and, if something can be put in place that is quicker and ensures that the defendant is still aware of the case that he has to meet, I do not think that any of my members would have a particular objection to it. In fact, we would welcome a reduction in delay in hearing criminal cases.

Mr Poots: I see. Would you welcome amendments to the Bill along the lines that Mr McGrory suggested?

Ms A Elliott: He made a number of suggestions, so it depends on what specifically you are asking me to agree with.

Mr Poots: Would you work with us, if some of us tabled an amendment to that effect? If it was not of the quality or standard that you would like, would you work with us to refine it?

Ms A Elliott: Absolutely.

Mr McCartney: Does the district judge at the committal have the power to stop a case?

Ms A Elliott: Unless you make an application for abuse of process —

Mr McCartney: What about the quality of evidence? I will give you an example. I do not know how this case proceeded, but the case that included the two Stewart brothers went to trial. The way in which they were then exposed makes you wonder. Had there been a very efficient mixed committal hearing, their lack of credibility should have been spotted then. The case should have been struck out, and all the savings made. How do we put that type of protection into the system in such a case? Is there a situation in which the defence would not apply for mixed committal and let it run to trial?

Ms A Elliott: Invariably, the defence does not apply for mixed committal but will look at the papers and see that there is a case to answer. As I said, it is very rare for a mixed committal to be sought by the defence, and, when it does, the judge really has no power to prevent it from proceeding on that basis.

Mr McCartney: In the case of the Stewart brothers, could the district judge not have said that they were bad witnesses and that, if that was the basis of the prosecution, it should not have gone any further?

Ms A Elliott: I cannot comment on a particular case.

Mr McCartney: Right.

Mr A Maginness: Ms Elliott will not comment on an individual case, and that is quite proper. However, theoretically, the defence can apply to dismiss the case at that stage, and the district judge has the power to dismiss it.

Ms A Elliott: Yes.

Mr A Maginness: That is an important power that the district judge has at that stage.

I want to add one further point about delay. The provision may expedite the process to the Crown Court, but it will not necessarily make the trial at the Crown Court any faster. It could delay it, because, at the Crown Court, the counsel or solicitor will maybe apply for the case to be dismissed on the grounds of a deficiency in the case. The beginning of a trial could be encumbered with a whole series of applications that could have been dealt with during a preliminary enquiry or investigation.

Ms A Elliott: The provisions on moving a case by direct committal for murder or manslaughter would appear to allow for an application to be made prior to arraignment before the Crown Court judge to seek dismissal in the interests of justice. The Crown Court judge will make a determination prior to arraignment at that point. Is it correct that that, at that point, power should be moved from the Magistrates' Court to the Crown Court? There would need to be —

Mr A Maginness: In a sense, it will not eliminate delays that could be caused in the trial process.

Ms A Elliott: I can only say that, when the Bill becomes operative, and there is direct committal for murder and manslaughter, you could have a scenario in which, effectively, what should have been argued at the Magistrates' Court will be argued in the first instance in the Crown Court. Is that a good use of court time?

The Chairperson (Mr Givan): OK. No member wishes to ask anything further about that section of the Bill or the prosecutorial fines.

On the miscellaneous element and the duties of solicitors to advise clients about early guilty pleas, will you elaborate a little on why you think that that should be done by the PPS and not you?

Ms A Elliott: I will comment on when it is determined that a duty becomes operative. The clause states that it should be done at the "earliest reasonable opportunity". For the professional, who is obliged to meet a statutory obligation, when is the earliest reasonable opportunity? Is it in the police station? Is it during the first appearance in court, at committal, at arraignment or at the provision of secondary disclosure? It seems to be vague. In reality, solicitors have an ongoing duty to their clients to ensure that they are fully advised. It is really a matter of professional judgement how and when you explain that to somebody.

Quite often and quite usually, defendants who find themselves in the criminal justice system are vulnerable. They often have literacy problems, addiction issues and a variety of difficulties. So it can be quite an art — art is the wrong word. It can take some deal of work on the part of a solicitor to ensure that that person understands entirely what is happening and that the solicitor is fully aware of the case that that person is facing so that he or she can give appropriate advice.

I query whether putting in a statutory obligation that solicitors must advise at the earliest reasonable opportunity about early guilty pleas is taking a sledgehammer to crack a nut. I am also concerned that that would enter into client–attorney privilege and that the balance is effectively being changed so that solicitors are not independently advising their clients but are, if you like, carrying out a function of the state. On balance, it should be the judge who gives a warning about proceeding to trial when perhaps that person needs to be aware of the risks that will arise if he is ultimately found guilty.

I go back to the issue that Mr McGrory raised about whether there should be a statutory reduction in sentencing if someone enters an early guilty plea. To be frank, I would be concerned if such a statutory reduction were put in place. Again, a myriad of circumstances can arise in any court, and you could have a defendant who has absolutely no remorse, is extremely proud of doing what he or she did and says so from the get-go. It absolutely seems to fly in the face of good justice that that person would be provided with a statutory reduction in sentence for an early guilty plea.

The Chairperson (Mr Givan): Would that be the norm? Would that not be an exception to the rule? Is it not really people who are guilty as sin but who will try to use the system to see whether all the i's have been dotted and all the t's have been crossed? Some 28% of people who plead not guilty before the case goes to trial change their plea because the state has been able to provide evidence that is obviously pretty irrefutable, so they change their pleas. Is that not normally the type of people whom we are dealing with?

Ms A Elliott: It would be useful to look deeper into the percentage of 28%. I imagine that a number of factors bring about somebody's change of plea prior to trial or on arraignment. That could be an amendment of the charges or an agreement or understanding about the facts. It is not uncommon to have a defendant who says that he did a, b and c but did not do x, y and z as was alleged. On the face of it, that person is pleading guilty, but it is not on the facts that the prosecution would seek to persuade the court are the case. You sometimes have hearings before a court about the facts only, with an understanding that the defendant will plead guilty to a certain factual scenario. It is too simplistic to say that 28% of people change their plea at the last minute and should have pleaded much earlier.

The Chairperson (Mr Givan): We asked for those figures. However, Barra seemed to indicate that it related to exactly the same charge and was not a case of accepting guilt on a charge that had been amended. You are right; we do need to get it. I have some sympathy for the judge having to do it. However, surely if you are going to give the best advice to your client, there is a responsibility on the advocate to say to the client that, in all likelihood, he is going to be found guilty and should consider pleading guilty because that will be taken into account in sentencing.

Ms A Elliott: That is sometimes — not always — a conversation that you have. The issue is when you have it. Ordinarily, it would be after you have obtained secondary disclosure. So there will have been further exploration into the instructions that have been given to you by the client. Maybe, on the provision of that secondary disclosure, there are anomalies that are not sensibly explained. Again, it is very difficult to be entirely prescriptive, because every circumstance is different. However, when a client gives a set of instructions that just do not in any respect match the paperwork, or there is nothing to assist in what he or she is saying, a solicitor would have a conversation about whether the evidence is likely to be believed.

The Chairperson (Mr Givan): This is my ignorance, but would an advocate ever ask a client, "Are you guilty?" Am I naive to think that people who commit a crime would tell their solicitor right from the start that they are guilty but want to know what the solicitor can do to get them to a point at which they might get off or get a reduced sentence?

Ms A Elliott: Clients will sometimes say that they are guilty or that they did x, y and z. A solicitor's ethical obligation is to represent that person on the basis of the information or instructions that he has given to you. If the person says that he is guilty of theft, a solicitor will then proceed ultimately to enter a plea for that person. However, that person may say, "I am guilty of theft but don't want to plead guilty", in which case the prosecution has to prove its case. However, you can never call perjured evidence nor make a case on behalf of that person that they did not do it.

The Chairperson (Mr Givan): However, if there is a requirement in the Bill for a judge to ask the advocate, as Barra indicated, whether he has advised the client about pleading guilty early and the impact that that could have on sentencing, does a solicitor need to take instruction from the client to be able to answer that, if the client has told the solicitor that he is guilty but is not going to plead guilty?

Ms A Elliott: I have to stress that it would be most unusual for people to say that they are guilty but want the prosecution to prove its case. However, if people did want to go down that avenue, a solicitor would put very strong advice to them about the risks that they are running.

Mr McCartney: Paragraph 23.1 of your submission states that it is part of the professional obligation to provide clients with the best possible advice. The issue seems to be legislating for that and deciding when the most appropriate time is. How do we square that? Do you think that it should run as is? The idea of "encouraging" someone is, I think, the wrong terminology. It sounds almost like pushing people into a position that they should not be in. At the same time, it is about giving people full appraisal of the facts; in other words, in the scenario you outlined, there might be situations in which a person has done a, b or c but feels that it is not f, g or h. How do we frame the system so that people are getting justice, but it is not unnecessarily clogged up by people hanging on in the hope that they might get something extra?

Mr Alan Hunter (Law Society of Northern Ireland): There are a couple of things about that. It can sometimes be missed in statistics that these are all individuals who are entitled to justice in our system, and it is our collective responsibility to ensure that we have a system in which each of us has confidence. What appears to me to be missing from the clause is any reference to the fundamental principle that a defendant's plea must always be made voluntarily. That is entirely missing. Think about vulnerable defendants and vulnerable children. Where is there any specific provision as to how children or young people might be treated differently?

I am also thinking about the system and a person's right to a defence and to proper access to an adequate and compliant justice system. How will that defendant feel, particularly a vulnerable defendant, about being advised by his or her solicitor, "There are advantages, you know, if you plead guilty"? What we have at the moment is, as the vice president said, a very balanced, measured and appropriate system that works quite well in practice. If it is the Department's and the Assembly's will to introduce a provision of that nature — I think that the society would oppose it in its current form — at the very least, some balance needs to be added to the clause to take account of vulnerable witnesses of all descriptions and vulnerable defendants and to introduce an overriding principle that a defendant's plea always has to be made voluntarily. The suggestion that the duty might fall on the judge at a particular point would make it, at the very least, a procedural requirement that would ensure that a defendant was aware and might remove any undue pressure from people who were vulnerable or who might inappropriately plead guilty to a set of circumstances that is not relevant, as the vice president said.

Mr McCartney: Is there a process in place whereby a defence lawyer can go to the prosecution service and say, "My client will plead guilty to actual bodily harm rather than grievous bodily harm"?

Mr Hunter: I will defer to the practitioner.

Ms A Elliott: There is not a process in place as such, but, in the ordinary course of a case, prosecution and defence will quite often have a discussion about what can be agreed and what is not agreed. That is entirely common. Plea bargaining does not happen. You cannot have a scenario in which the defence says to the prosecution, "We will plead to this if we get that".

Mr McCartney: I am aware of a particular case, and I know that, with actual bodily harm, the sentence cannot be appealed but, with grievous bodily harm, it can.

Ms A Elliott: I defer to your better knowledge of it.

Mr McCartney: It is about the interests of the victim. My reference was to a domestic abuse case. So a person can be convicted of actual bodily harm, and there is no provision for the prosecution service to appeal it.

Ms A Elliott: Do you mean if the prosecution reduces it?

Mr McCartney: Yes — leniency of sentence. Alan talked about the voluntary plea, but in terms of a witness and a victim, what is the process that protects someone when the prosecution service feels that it has, in the first instance, evidence to go for grievous bodily harm? People talk about agreement, but, when you look at it from the outside, it is a short step from plea bargaining, and sometimes it is not in the interests of justice for people who have suffered that grievous bodily harm, particularly when they are told afterwards, "This cannot be appealed because it was actual bodily harm, but, if it had been grievous bodily, you could have". How do —

— at that end of it as well?

Ms A Elliott: The victim has an opportunity to make a victim impact statement, and, as you heard, the victims' charter may help to ensure that victims feel more part of the process.

The issue that you raise is in relation to victims feeling that the prosecution has not fully represented their position. The victims' charter might assist in how issues like that arise in future. I suppose that that is a different issue from the defence.

Mr McCartney: I do not think — Barra McGrory said this — that any of us want to see a plea bargaining situation, but, sometimes, when you have provision — it might be well placed in the framers of this issue — you get an early guilty plea that saves everybody costs and all that goes with it. However, I think that you are starting to build it into the system because someone might come along and say, "My client will plead guilty early if it is reduced from grievous bodily harm to actual bodily harm". In one sense, the system might be saying that it is good justice and it is fair, but the victim is looking on and saying, "How are we protected from plea bargaining and from using one provision that might look good on paper and in theory, but, in another way, it can be used as part of the plea bargaining?". We can call it whatever we want, but, in essence, it becomes plea bargaining.

Ms A Elliott: In essence, fundamentally, how a case proceeds from a prosecutorial point of view will always reside with the prosecutor. You naturally would have issues where victims do not agree with an approach taken by the prosecutor, but, ultimately, it has to be the prosecutor’s decision to assess the evidence available to them and the likely outcome if it proceeds to court.

I can imagine that victims can sometimes feel excluded from the process and from the thinking behind it, but it is very difficult to get away from the prosecution having the ultimate say in how a matter progresses.

Mr A Maginness: In relation to part 8 and clauses 77 and 78, the proposed duty would rest with a solicitor; it would not rest with a barrister. Would it rest with a solicitor advocate? There would be a question mark there.

Ms A Elliott: The clause refers to the solicitor. I suppose that the concern that the intention is possibly that "the earliest reasonable opportunity" is the police station.

Mr A Maginness: If it gets to court and the solicitor says to the client, "I think that you should plead guilty here. An early plea will get you discount, and, by the way, I am going to instruct counsel to conduct a plea in this case". If counsel receives the papers for the case and says, "By the way, you are not guilty of this offence or these offences. I have looked at the papers and have discovered that you could not be guilty in the circumstances". Take, for example, road traffic offences, counsel could say, "This was not a public highway; it was not a public place. Therefore, you are not guilty of any road traffic offence". So, you could have a very peculiar situation in which there is a conflict between counsel’s assessment of the case and what the solicitor has advised the client. I know that that might be far-fetched, but there is a potential conflict there. Is that not true?

Ms A Elliott: Yes, absolutely.

Mr A Maginness: I am uncomfortable with this because it all conspires to force people into pleading guilty in circumstances in which they may be innocent of the charges facing them.

I think that we are now establishing a process in which, more and more, because of the efficiency and expediency of justice, dealing with trials and so forth, people will plead guilty when they should not.

Ms A Elliott: I am going back a little now, but the right to silence has effectively been limited and reduced to an extent that when you are providing advice to a client in a police station, it can become quite difficult to give proper, full advice. The additional statutory need to advise in respect of an early guilty plea is the next step. There is no doubt.

Mr A Maginness: At paragraph 25.1, you said:

Is there an issue in relation to disclosure from the Prosecution Service? I apologise that I was not here when the director gave his evidence.

Ms A Elliott: I do not have the evidence for it, but it is believed that we would find much greater difficulty in Northern Ireland in taking evidence that, ultimately, requires a number of different applications for disclosure ultimately being made in the Crown Court. However, it is something that would have to be looked at in a statistical fashion.

Mr A Maginness: I have one final point, Chair. There is an inherent duty on any solicitor to advise their client if he comes to the conclusion that it would be advisable for them to plead guilty. Leaving aside that duty, which is a professional duty as opposed to a statutory duty, should the real duty not lie on the court and the judge to say to the defendant that if they enter an early plea, there would be a discount in sentencing?

Ms A Elliott: Yes, absolutely. That would cover any concern that a defendant is not aware of the benefits of an early guilty plea in sentencing. It will have been said in an open court, and all can be assured that a defendant has heard it. I think that that is a more appropriate way of doing it than placing a statutory obligation on a solicitor.

One small point that I did not raise was that the final clause details that any person can make a complaint in a solicitor’s disciplinary tribunal in respect of breach of that solicitor in failing to advise. I would be concerned that that procedure would be abused by somebody engaged in criminal proceedings to undermine a solicitor simply carrying out their professional obligations.

The Chairperson (Mr Givan): Finally, do you have a view on the rights of audience, which was discussed earlier?

Ms A Elliott: I was interested to hear the view of the Public Prosecution Service. The society would be very concerned that if you have the Attorney General’s office, the Public Prosecution Service office and a multitude of other offices looking to avoid part of the regulatory framework, you will end up with a very piecemeal framework, which would not be healthy, for want of a better word.

It also seems to me that the Attorney General’s representations that somebody simply working in his office should not have to go through those regulatory hoops would centre around the personality of the Attorney General. That does not seem to be a sensible way to regulate. So, I would be opposed to piecemeal exemptions being made across the board.

The Chairperson (Mr Givan): If the Attorney General or, for that matter, the PPS, has to use a self-employed legal professional, surely they will be acting under the instructions of the PPS and the Attorney General anyway. So, for want of a better phrase, the personality issue surely does not stand.

Mr Hunter: There seem to be two separate issues emerging. Prohibition, which I heard discussed this afternoon, is a prohibition of rules, as I understand it, from the function of the Bar rules that if you are an employed barrister, you may not appear. There is a different issue in relation to solicitors because that prohibition does not apply. As you know, we are putting in place a regulatory structure that would enable solicitors to exercise rights of audience in the higher courts. What we are saying is that solicitors who are employed by the PPS or anyone else would not have that prohibition. The prohibition for solicitors comes from the prohibition on the rights of audience in the higher courts, not from any internal rule. It appears to me, from this afternoon’s conversation, that there may be two different issues.

The Chairperson (Mr Givan): Thank you very much for coming to the Committee; it is appreciated.