Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I will move on to Part 2 of the Bill, which covers committal for trial. I welcome Maura Campbell, deputy director of the criminal justice development division in the Department. When you are ready, will you outline the purpose of clauses 7 to 16 and schedules 2 and 3 to the Bill, which cover committal for trial? We will then open up the Floor for questions.

Ms Maura Campbell (Department of Justice): Thank you very much, Chairman. There have been decisions covering a number of measures designed to speed up the justice system. Part 2 provides for the reform of the committal process — I think I am safe in using the word "reform" in this context — and five clauses in Part 8 cover early guilty pleas, a statutory framework for the management of criminal cases, which is also referred to as statutory case management, and the public prosecutor's summons.

Those clauses in Part 2 aim to streamline the procedure for moving business from the Magistrate's Court to the Crown Court. Under the current arrangements, the committal stage is used to determine whether there is sufficient evidence to justify putting a person on trial in the Crown Court. That can be done in a couple of ways, such as through a preliminary investigation (PI), where witnesses are required to give oral evidence and to be cross-examined, or through a preliminary enquiry (PE), which is essentially a paper exercise. We also have what are known as mixed committals, which are effectively a combination of the two. In practice, most cases proceed by PE.

Clauses 7 and 8 would abolish preliminary investigations and mixed committals. That is in direct response to feedback from victims' organisations about the impact on victims of having to give their oral evidence in court twice. That can be traumatic, especially for victims of sexual crime or other vulnerable witnesses, and it can feel like a trial within a trial for them.

Clause 11 would allow cases to be directly transferred to the Crown Court, where the defendant has indicated that he or she intends to plead guilty at arraignment.

Clause 12 provides for the direct transfer of a specified offence. At this stage, we propose that that should apply only to murder and manslaughter cases. The intention is to add to the list of specified offences over time.

As you might expect, a range of views was expressed during consultation. For example, while the Law Society acknowledged the concerns about vulnerable witnesses, it suggested that it would be preferable to build on existing court rules that allow for certain exceptions and to give more discretion to district judges to allow oral evidence to be given at committal if the interests of justice required it. On the other hand, the Public Prosecution Service (PPS) commented that the proposals in the Bill were more limited than it would have liked, and it called for committal to be abolished altogether. Victim Support NI also said that it favoured outright abolition, but it had no fundamental objection to a staged and gradual transition along the lines that we are proposing.

We noted in our response that outright abolition is the Minister's ultimate aim, once it is clear that the system has the ability to cope. In the interim, we feel that our proposals are striking the right balance. The PPS also suggested that clause 12 could usefully be amended to enable the direct transfer of a co-defendant who has been charged with a non-specified offence. We are happy to explore that today with the Committee. If you were minded to accept the need for an amendment, we could look to bring that forward at Consideration Stage.

I will pause now to take questions on Part 2 before we move on to the other provisions.

The Chairperson (Mr Ross): You mentioned clause 12(4), which enables the Department to amend the list of specified offences by way of an order. Are there any limitations on that, or is there a role for the Assembly in the Department's power on that?

Mr Graham Walker (Department of Justice): The Assembly procedure that that would attract is the affirmative resolution procedure, so there would be an opportunity for the Assembly to debate that in full.

The Chairperson (Mr Ross): Maura, you mentioned that the Minister's aim is to remove the committal proceedings entirely. When do you anticipate that the criminal justice system will have the capacity to do that?

Ms M Campbell: We do not have an agreed time frame for that yet. I think that we would need to see how well we manage with the direct transfer of murder/manslaughter cases in the first instance, and I think that it would probably depend on what progress we might make with some of the other reforms. For instance, if we had a large proportion of defendants entering an earlier guilty plea, which would take a lot of clutter out of the system, it might free up resources to start transferring more cases into the Crown Court that do need to go for contest.

I think that a combination of factors will determine that. I think that the advice from the office of the Lord Chief Justice was that we should start with a smaller volume of those higher-end cases and see how that progresses before we make any decisions about how quickly we move to add other offences. At least we have the headroom to do that through this provision. As Graham said, that will be managed through coming back to you with proposals for what else might be added to that.

Mr McCartney: In an overall sense, how does the long-term goal of abolishing committal proceedings improve the justice system? Does it make it more streamlined? Does it speed up the process?

Ms M Campbell: Our main driver was the impact on the victim, because this originally came out of a focus group that we had with a range of victims' organisations. Victim Support and Nexus in particular were very keen for us to address this. We do feel that it has potential, particularly in the circumstances that I talked about where we are able to differentiate at an earlier stage between early pleas and contests. It could remove something that it is a bit of a speed bump at the moment in cases that could be got to Crown Court more readily.

We have been seeing that in a pilot exercise that we are doing on indictable cases in Ards Crown Court division. That commenced on 2 January, so it is still very early days, but already we are getting cases into court quite quickly. However, even where a person has indicated very early on that they wish to plead guilty, we still have the requirement to go through the committal process. If we did not have to do that, we could directly transfer them. Potentially, there are a lot of benefits, not just for court time but for the police and prosecution in proceeding by way of a streamlined file, as opposed to having to produce a full file, which can take a considerable amount of time. It also reduces the need to commission forensic exhibits, medical reports and all that, which are part of the reason for delays at the moment.

Mr McCartney: I ask that because defining a vulnerable witness would be relatively easy. I can understand that, in a situation where someone was giving evidence in a rape trial, it is like a trial within a trial, as a witness would have to be put through it twice or whatever. In other cases, where, say, a police officer or a forensic officer is the main basis of it, you can see the value of a committal trial to prevent you going to the Crown Court.

Ms M Campbell: That could be the case in theory, at least, but in practice, we have found that very few cases end up being weeded out as a result of the committal process.

Mr Walker: If we looked at 2013 as an example, we see that of a total of 1,743 cases that went through the committal process, only 51 were not returned for trial. In other words, they were not sent to the Crown Court. That is something like 2·9%, so it does not weed out a huge number of cases. It is not a terribly effective filter.

Ms M Campbell: Bear in mind that there are other ways in which cases could be taken out. That could be either through the defendant being discharged in a Magistrates' Court or the no bill procedure. We feel that there are other mechanisms for safeguarding the defendant's rights in those cases.

Mr McCartney: I understand that, but 51 is still a high number of cases where someone is not kept in the system for whatever number of weeks. I agree in principle, in that if there are vulnerable witnesses, there should not be a committal, because you are nearly putting off a potential witness because of the experience the first time. It might even reduce their ability to do it the second time, or they might not want to do it the second time. It is also about making sure that the system does not see it as a run-through. There must be something somewhere along the line to measure whether the case is sufficient enough to go to the Crown Court. We will then not end up with a high number of cases, especially when you are putting in a system with early guilty pleas, which might weed out some. It is about trying to come up with that sort of idea

committal.

Mr Walker: There are a couple of issues there. Once the defendant is sent to the Crown Court for trial, they can make an application for what is referred to as a no bill. Essentially, that is an application to the Crown Court judge before trial that the evidence that was disclosed at committal does not constitute a prima facie case. It is not the case that the reforms would mean that there would be a great number of cases going to a nugatory trial. Once they are sent to the Crown Court, if the defence feels that the defendant really should not be there, it can make the application for a no bill. Essentially, it is the same test at no bill as it would have been at committal; it is simply that the papers do not disclose the case.

Where the direct transfer provisions that we are proposing for murder and manslaughter are concerned, the clauses provide for an application to dismiss. Essentially, it is the same principle. Once the papers are served on the defendant, the defence can make an application to the Crown Court judge to say that the case against the defendant should be dismissed. Even through that process, it should not entail nugatory trials, because if there clearly is not a case to be answered, those applications will be made to the Crown Court judge.

Mr McCartney: When the Committee did the inquiry in and around the experience of witnesses and victims, one of the consistent observations/criticisms was the length of time it took from a person being charged to being put on trial. Whatever views or reservations you have on this particular thing, can we safely say that this will ensure that trials happen quicker?

Ms M Campbell: It should help with speeding cases up. We are also mindful that other jurisdictions in these islands do not have a committal process. It has been removed in the Republic, England and Wales.

Mr Walker: Scotland had a very different process to begin with.

Ms M Campbell: They had something different, but they do not have something that is comparable. We feel that it is proportionate in getting the balance right between the rights of the defendant versus the impact on victims and witnesses. It should also address the principal concern of victims, which is the sheer length of time that it takes to get cases through.

Mr Walker: Although a great deal of cases do not proceed by way of mixed committal or PI, the difficulty is that, once the defence says that it wants it to go by way of PI or that it objects to all or some of the witnesses, the case is set up for a PI or mixed committal. Quite often, that necessitates a couple of days in the court diary, and because the court diary may already be full, it could be maybe six or eight weeks before a date is set for the PI or the mixed committal. What invariably happens is that, on the day, the defence will quite often let it go through on the papers. The fact that we would be moving in the interim to a situation where all cases, bar murder and manslaughter, would be simply moved through on the papers would remove that potential blockage.

Mr McCartney: I assume that, presently, the number of applications for a no bill would be low.

Mr Walker: Yes.

Mr McCartney: If the new system comes in, do you expect that to increase?

Mr Walker: I would not necessarily expect it to increase. I have figures that show the number of no bill applications in a particular year, and I have tried to drill into them to find out whether someone is more likely to get a no bill if their case went through a PE or a PI.

In 2014, out of just over 1,500 cases, there were 27 PIs. Nine of those went to a no bill, which is 33%. Some 21 cases originated by way of mixed committal, and five of those went to no bill, which is almost 24%. Out of just over 1,400 cases — 1,453 cases — that originated by way of PE, 154 went by way of a no bill, which is just over 10%. I suppose the point is that it does not really matter how a case originates; there is still the opportunity for a no bill.

Mr McCartney: What do you want to see coming out of this in the future?

Ms M Campbell: It is difficult to put any hard figures on an amount of time or costs saved. Obviously, we will want to monitor that along with the other reforms that we are making, and it is very difficult to isolate one particular factor that helped a case to go through quicker. We will seek to have the capacity, which we have, to measure the impact that it looks like having.

The work that we are doing on a pilot basis might help us to look in more depth at particular cases to see what has helped to get them through quicker. Initially, that will be with a committal procedure in place, but we will maybe be able to set up a similar process when we start to take this out. Given that a relatively small number of cases will initially directly transfer, we should be able to look at those in some depth to see what impact they have had in comparison with what would typically happen with cases of that nature.

Mr A Maginness: The whole purpose of committal proceedings is that they act as a filtering system so that weak or questionable cases can be examined at an early stage so that a court can decide whether a person should go to trial. What is wrong with that?

Ms M Campbell: I suppose the real purpose is to see whether there is a prima facie case. It is not so much to test the reliability of the witness or the strength of the evidence, because that is properly the role of the trial.

It is about looking at the prima facie case, but we think that there are other safeguards in place that can be used to weed out those cases without interrupting the rights of the defendant.

Mr A Maginness: Yes, but you want to abolish any process of filtering.

Ms M Campbell: It is not so much that we are taking out any opportunity for filtering, because there are those other processes that effectively allow you to filter.

Mr A Maginness: Not until you get to the Crown Court.

Mr Walker: We will retain PE for all cases.

Mr A Maginness: Yes. PE is simply on the papers, right? Are you saying that you can make the application at PE for a dismissal of the case?

Mr Walker: Absolutely —

Mr A Maginness: You are retaining that.

Mr Walker: The district judge will retain their power to discharge the defendant —

Mr A Maginness: Let us say that the district judge says that witness A said such and such, that he has not had the opportunity to hear him or her, that, if he did hear him or her, he might have a different opinion, but, as he has not, the case will just go to trial. What purpose is served there?

Mr Walker: Essentially, that is what happens in the vast majority of cases at the moment. Whether it is a PE, a PI or a mixed committal, in practice, the district judge, either having heard the prosecution evidence in a mixed committal or a PI or having simply read the prosecution evidence in a PE, decides whether a prima facie case exists and does so before hearing any evidence on behalf of the defendant. Essentially, they are deciding whether there is or is not a prima facie case before they take it any further, therefore the defence —

Mr A Maginness: If there is a preliminary investigation, the magistrate is hearing evidence.

Mr Walker: Yes, but in practice, because of the way that the legislation is construed, only after the district judge has heard the evidence on behalf of the prosecution and has decided whether there is a prima facie case will he or she invite evidence from the defence. So, they will have already decided —

Mr A Maginness: I am not talking about evidence from the defence; I am talking about the examination of prosecution witnesses. It seems to me that, fundamentally, if you have a filtering system that separates good cases from bad cases in establishing a prima facie case that should properly be prosecuted, that is a very sensible system.

You are talking about 1,743 cases. Were they all PEs, or were they a mixture of PEs and PIs?

Mr Walker: I think that you are referring to the 2013 figures.

Mr A Maginness: Yes.

Mr Walker: Of those, 42 were PIs and 31 were mixed committals.

Mr A Maginness: Right, so 70 out of that lot were proceeded with by hearing some evidence.

Mr Walker: I cannot say that with any degree of certainty. What I can say is that they were listed as a PI or —

Mr A Maginness: I accept your point that sometimes you get to a stage where it is just decided on the papers. Out of 1,740 cases, you have 70 cases that went through an actual committal of some sort. That is a very small percentage. It is not as if there are hundreds of cases clogging up the system. It is a very small percentage, and I wonder why you want to eliminate that when it serves a good purpose. In other words, that process gets rid of bad cases that should not be prosecuted.

Ms M Campbell: I suppose that another way of coming at it —

Mr A Maginness: Sorry, Ms Campbell, I want to ask one further question, and I will then come back to you. Out of the 70 cases that were heard, how many ended up with the charges being dismissed or the trial not being proceeded with?

Mr Walker: I do not have those figures.

Mr A Maginness: It would be interesting to find that out. That would be useful.

Mr Walker: In 2013, only 2·9% of cases were not returned for trial.

Mr A Maginness: Yes, that was 51. That might be 51 people out of that 70; it might be 51 people out of the cases from that 70 that were not proceeded with.

Ms M Campbell: It would be 51 out of a larger number of cases.

Mr A Maginness: Perhaps, you could come back on that; I do not want to get bogged down with it. Sorry, I interrupted, Ms Campbell.

Ms M Campbell: You made the point that, if you do not hear the oral evidence, you are missing an opportunity to weed out cases. I suppose it comes back to whether the opportunity to weed out a relatively small number of cases through that process is proportionate when you look at it against the impact on the victims. That is where we are coming from. Bearing in mind Mr McCartney's point about attrition, there is evidence from the victims' organisations that having to go through the committal process can lead to attrition in a number of cases, particularly in serious sexual assault cases. We have looked at this in the round — looking at both the victims' perspective and the efficient administration of justice — and we have come down in favour of taking out the oral evidence section, because we think that it is proportionate to do so.

Mr A Maginness: In dealing with sexual cases, are there not provisions to prevent a cross-examination taking place?

Ms M Campbell: There are certain protections in place for vulnerable witnesses, but the feedback we are getting from the victims' organisations is that having to go through that process is —

Mr A Maginness: But if no cross-examination takes place, surely that meets the need of a vulnerable witness. I am in favour of protecting vulnerable witnesses and think that the court should have the authority and discretion to prevent a vulnerable witness being cross-examined, particularly in sexual cases.

Mr Walker: Though, those rules only relate to witnesses up to the age of 17.

Ms M Campbell: So, adult witnesses can be called to give evidence —

Mr A Maginness: I am not sure about that, but I defer to your greater knowledge on the matter. In any event, this is a process that can be helpful for the administration of justice, and it does not unduly hamper the expeditious processing of court cases. I am not sure that you are going to save much anyway, which I suppose is contrary to my own argument, but nonetheless this could be helpful for weeding out bad cases. At the very least, a mixed committal should remain. In other words, there should be an opportunity to examine, not all witnesses, but some specified witnesses who are central or core to the prosecution case.

Mr Walker: I certainly take that point. The only thing I would say is that, obviously, the defendant will still be entitled to make an application for a no bill once the case is transferred to the Crown Court.

Mr A Maginness: That is the other point that I am going to make. You may see an increase in people applying for no bills in the Crown Court, and at that point you may have further delays in the Crown Court in relation to cases that have not been properly filtered through a committal process.

Ms M Campbell: That is unlikely, hopefully, in the case of an early guilty plea. Obviously, when we introduce this for murder and manslaughter cases, we will need to monitor that to see what happens in practice.

Mr A Maginness: Of course. At a no bills stage — I am not sure about this — is there an opportunity to call witnesses?

Mr Walker: No, there is not. The Crown Court judge simply considers the papers that were tendered at committal.

Mr A Maginness: That is a weakness, certainly from a defence point of view. If you are on trial and say that witness X is a bad witness, and he or she is central to the prosecution case, you can apply to the judge who might say, "We'll hear this case, and you'll have an opportunity to cross-examine this person in the course of the trial." Surely, that is not satisfactory.

Mr Walker: Arguably, the correct forum for testing the credibility of witnesses is at the trial itself as opposed to in the preliminary proceedings.

Mr A Maginness: Arguably, arguably.

Ms M Campbell: Also arguably, it is the role of the PPS to ensure that, in bringing forward a case, it meets the public interest test, including the evidential test, and that witnesses are going to be capable of giving oral evidence.

Mr A Maginness: The PPS, in its submissions and comments on all of this, is gung-ho in favour of getting rid of committal proceedings. That surprises me, because I would have thought that the PPS would view it as a public duty to examine cases at an earlier stage to ensure that proper prosecutions are brought.

Ms M Campbell: I think the PPS is very mindful of the resource requirement of preparing for a committal, which in certain circumstances can be almost as great as preparing for the trial itself. I think its hope is that the abolition of committal would greatly reduce that overhead for it.

Mr A Maginness: Can I ask about a very minor and probably silly point? Why do you spell "inquiry" with an "i" and not an "e"?

Ms M Campbell: That is not a silly question.

Mr Walker: That is a question to which I once may have known the answer.

Mr A Maginness: If you look at what the various legal bodies say, you see that they all talk about PEs. Indeed, during your submissions, you were talking about PEs, but, in the Bill, it is PI. It is "inquiry" beginning with an "i".

Mr Walker: The Magistrates' Courts (Northern Ireland) Order 1981 has "inquiry" with an "i" as well. I think that it has just grown up that it is being called a PE to differentiate it from the other PI.

Mr McGlone: Maybe they have been privatised.

Mr Walker: Possibly.

Mr Elliott: It is very technical.

Mr A Maginness: Well, there you are.

The Chairperson (Mr Ross): We will move on before we get into a debate about apostrophes and things like that. Do no other members wish to speak on this section? Are we happy enough to move on?

OK, we move on to Part 8 and clauses 77 and 78, which cover early guilty pleas. Again, whenever you are ready, if you want to brief us on this, we will then put the questions.

Ms M Campbell: Yes, certainly. These are two statutory provisions intended to encourage the use of earlier guilty pleas. They are intended to complement the approaches we have been developing in parallel on a non-statutory basis.

The provisions will require a sentencing court to state the sentence that would have been imposed if a guilty plea had been entered at the earliest reasonable opportunity. They also place a duty on a defence solicitor to advise a client about the benefits of an early guilty plea.

We have made you aware of our intention to make a small adjustment to clause 78. That is to remove a regulation-making power that the Attorney General advised was not required.

A number of issues were raised during your consultation. Those included how much impact the provisions would have in practice, whether the duty on solicitors should also apply to advocates, and when the earliest reasonable opportunity to enter a guilty plea might be.

That is just a brief overview of the provisions, and I am happy to take questions.

Mr Dickson: While I appreciate the value of early guilty pleas, where are the protections for children and vulnerable adults? All the evidence would indicate that those are the two types of people most likely to admit to something when there is no requirement to do that.

Ms M Campbell: I absolutely agree with that. What we do not want is people to feel that they are somehow being coerced into entering an early guilty plea. It is about speeding up justice but not expedient justice. The police and PPS would be encouraging people to take advice from the legal representative before they would decide how to enter a plea.

We have been piloting a sentencing statement that outlines in detail for an accused, after a police caution but before the start of a police interview, what the implications might be of entering an early plea but also reminding them that, if they are not guilty of the offence, they should not plead guilty to it. That seems like a fairly obvious statement, but someone who is vulnerable may need that spelled out for them. If someone is particularly suggestible or might want to give the answer that they think is expected, you have to make that absolutely clear. The statement reinforces that point a couple of times.

If the police felt that someone was not able to make an informed decision, they would certainly try to ensure that they had proper legal representation or the support of an appropriate adult at that stage to make sure that their rights were safeguarded. You are absolutely right: it is an important point that we do not want those who are more vulnerable to just go with the flow and maybe confess to something that they did not do or to confess to the wrong charge.

Maybe they did something, but it was not quite what they are being charged with, which can happen on occasions as well. That point is very well made.

I do not think that there is anything in our provisions that should create additional risks for a vulnerable person making that plea, because we are putting the onus on the defence solicitor to advise their client, to give them the proper advice and to get to the heart of what has happened in the case, in the way that many defence solicitors say that they already do and they should be doing.

Mr Dickson: It is just the need for that assurance to be there, so that, in particular, children and vulnerable adults do not think that this is a way of getting out of the situation — out of the police station where they are sitting or whatever — and so that they can have adequate representation and that the police officer asking the questions not only has the right of the law to process the matter but the ability to use their common sense and judgement of the situation so that they can advise the individual that it would be appropriate to take legal advice before saying something.

Ms M Campbell: For people with significant communication difficulties, registered intermediaries can be brought in at a police investigation stage to assist the police in ensuring that they are interviewing the person in the correct way and that the person understands what is being asked of them.

Mr Dickson: Does that also apply to somebody for whom English is not their first language or for somebody who is deaf and uses sign language?

Ms M Campbell: In those cases, a registered intermediary may not be required. It may be an interpreter who can ensure that there is proper comprehension and understanding. The registered intermediary role is more for someone who, maybe because of a learning disability or some such disability, is having difficulty in expressing their views or understanding what is being said to them; their expressive or receptive language is impaired in some way. We are still at pilot stage with that, and it is still for the Crown Court. Certainly, it is for the most serious cases and, in some cases, exceptions are being made, in particularly meritorious cases outside those tiers where that provision is there. We want people to think about this at an early stage, and, at that stage, we will try to ensure that the right safeguards and protections are available to make sure that the vulnerable have their rights upheld.

Mr Dickson: The other side of the coin is obviously the fact that it is a welcome move to expedite a case.

Ms M Campbell: We see benefits to the defendant. We have had helpful discussions with defence practitioners, and we found that, in a number of cases, their view was that it might make it easier for them to properly advise their clients if all of this is done very transparently.

Mr Dickson: I accept that. Thank you very much.

Mr A Maginness: I do not understand why the court needs to say what sentence it would have imposed if a guilty plea were entered at the earliest reasonable opportunity. Why is that necessary?

Ms M Campbell: The intention there is that, if someone decides to enter a plea at a very late stage in proceedings, the court can make it clear to them that they are not getting the maximum discount that may have been available to them had they pleaded guilty at an earlier opportunity. It reinforces the fact that a late plea will not, in most cases, get you as much discount as an earlier plea might.

Mr A Maginness: The damage is done, as it were. What is the point of the court doing that at that stage? How does that assist anybody?

Ms M Campbell: It probably does not make much of a difference in that particular case, but it would make offenders and their legal representatives more generally aware. It goes back to the point that I made to Mr Dickson about more transparency in the system about how the system of early guilty pleas operates.

Mr A Maginness: Yes, but it is a self-evident proposition that if you plead guilty late on in the day, you are going to get a heavier sentence than you would have got. That stands to reason, does it not?

Mr Walker: During the consultation, the point was made that there was a degree of knowledge out there about credit and a reduction for an early guilty plea, but that it would be helpful if there was greater transparency and a way, almost, of advertising that. I take your point that it is sort of closing the door after the horse has bolted. However, the intention behind the clause is, essentially, to build up, over time, an enhancement of knowledge of the sentencing guidelines that the Lord Chief Justice has promulgated. The intention is to increase awareness and build up a greater knowledge that credit is available in certain circumstances.

Mr A Maginness: The next provision concerns the duty of the solicitor to advise a client about an early guilty plea. If a solicitor does not do that, he or she will be in breach of the regulations that will be devised. Is that right?

Mr Walker: As drafted, the clause provides that the Law Society would make regulations in respect to the giving of advice. It was drafted in that way because, as the duty to advise touched on the professional obligations of a solicitor, we felt that it was probably more appropriate to leave that to the Law Society to regulate.

Mr A Maginness: So, it will devise those rules and regulations, and then —

Mr Walker: Sorry, what I was going to say was that one of the amendments before you would remove that subsection, on the advice of the Attorney General. The Attorney General commented that, as the clause already sets out the nature of the duty and the penalty for failing to comply with the duty, clause 78(3) simply placed a regulatory burden on the Law Society that could be dispensed with. So, that regulation-making power would —

Mr A Maginness: What is the penalty if a solicitor contravened that section?

Mr Walker: That is set out in clause 78(5).

Mr A Maginness: Yes, which states:

Ms M Campbell: Yes.

Mr A Maginness: You then get into all sorts of problems about who is telling the truth in that matter: is it the client or the solicitor? There are also all sorts of issues about client-solicitor confidentiality. Have those been addressed?

Mr Walker: The drafting of the clause closely follows the provisions in the Justice Act 2011 on the giving of advice by a solicitor advocate. It is constructed in a broadly similar way.

We have had some engagement with the Law Society on the clause. We have not specifically discussed that issue nor, to my knowledge, has it necessarily been raised with us by the Law Society.

Mr A Maginness: It seems to me that any solicitor worth his or her salt will advise their client to plead guilty if there are grounds to do so, and to do so expeditiously.

Ms M Campbell: It is the Law Society's belief that, in practice, most solicitors would routinely do that, and that that would not be a significant departure from what is regarded as current best practice.

Mr A Maginness: My point is this: why are you putting it into legislation, if it is being done?

Ms M Campbell: It arose from a discussion with the Committee when we briefed you on the outcome of our consultation on early guilty pleas. Mr Weir made that suggestion, and following our appearance —

Mr Walker: And Mr Wells.

Ms M Campbell: Mr Wells as well. Following that, the Committee Chair wrote to us to ask whether we had considered the suggestion and whether we were willing to accept it. We said that we would, on foot of the briefing that we had provided on the outcome of the consultation.

Mr A Maginness: Sometimes I disagree with Mr Wells.

And, indeed, Mr Weir.

Ms M Campbell: We wrote to the Committee on that occasion, so all members would have had sight of the correspondence at the time.

Mr A Maginness: I understand the history, but it just seems to me to be unnecessary in all the circumstances.

It will create a lot of problems. Well, not a lot of problems, but it could create conflict between a solicitor and a client. A client could perhaps even use an alleged breach of the duty to his or her advantage in the justice system. It is unnecessary and could give rise to some problems, even though its inclusion is well intentioned, and I am sure that Mr Wells intended for it to be used properly.

Mr Elliott: Sorry, Chair, is Alban saying that he does not think that the clause is necessary?

Mr A Maginness: I do not think that it is necessary.

Mr Elliott: I just wanted to clarify that.

Mr A Maginness: It is my political view.

Mr McGlone: I want to go back to Alban's point about people admitting that they are guilty halfway through a trial. In the case of a brutal crime, around which there is probably a lot of media attention, the judge could say that the defendant would have got 20 years but is instead being given 14 years. You will forgive my degree of cynicism, but people usually admit their guilt because the writing is on the wall and their solicitor has told them, "Hi, boy, you are going to get the hammer here anyway, so you are better admitting your guilt". There may be victims of brutal crimes, and families of those victims, who will feel that that boy should have got 20 years and that the judge pulled out of applying that sentence because, in a cynical exercise, the defendant admitted that he was guilty.

From a presentational point of view, that could create more problems than it would solve in the area of transparency and all those things. I therefore remain to be convinced.

Ms M Campbell: The circumstances that the clause is intended to address are those in which defendants could have pleaded guilty earlier but did not. They had perhaps made the victim go through the trauma of giving evidence and then entered their guilty plea, whereas they could have reasonably entered their plea before that happened. It is to allow the judge to say that, as a result of having put the victim through that ordeal, defendants will get less of a credit or discount than they would otherwise have done. The scenario that you are talking about relates to the giving of extra credit because a plea was entered early.

Mr McGlone: I remain to be convinced, but thanks for shedding some light on the thinking around it.

Mr McCartney: I want to make a couple of points. My understanding is that the Law Society is not happy about being put in the position of the early guilty plea almost becoming part of its responsibilities. Alban is right. The Law Society may say that all good solicitors will advise their client of all the options but that making it a statutory responsibility for them to do so may pose them some problems. We may have to return to the matter in the future. On the —

Mr Walker: Sorry, Mr McCartney, but we absolutely accept that solicitors who are acting in the best interests of their client would properly advise that client at the appropriate juncture.

Mr McCartney: The other aspect concerns the process. If a charge is laid against someone, will part of the process deal with whether that person pleads guilty to a lesser charge? We see that often at the door of the court. A person may be charged with grievous bodily harm, and the prosecution may say to the defence that it might look favourably on a plea of actual bodily harm, after which the plea is changed.

Ms M Campbell: We are not trying to go down the road of plea bargaining, which I think is your underlying concern. I am sure that there are circumstances in which at an early stage in considering a case, depending on what the accused discloses, the PPS may review the appropriate charge. A typical example might be one of someone admitting to possessing marijuana but saying that it was for personal use and that there was no intent to supply. In that situation, the PPS might look at what it would charge the individual with. However, we are not talking about brinkmanship at the door of the court in an effort to get a reduction in the charge. That would be getting into plea bargaining, which is a different thing. That is not the policy intent behind the clauses.

Mr McCartney: In your scenario, people might have made no admission on arrest, but, when presented with the charges, they might say to their brief that the marijuana was for personal use. However, because the police are charging them with intent to sell, they will fight that charge. If they were given the opportunity to go for the lesser charge, they might plead guilty, so how do we fix that scenario?

Ms M Campbell: I will again refer to the pilot that we have under way in the Crown Court. One thing that we would like to see happening in the future in cases is earlier disclosure to the defence from the prosecution and earlier discussion between police and prosecution about what the appropriate charges in the case should be. At the moment, both sides seem to like to play their hand very carefully and not disclose more than they are required to, but we think that there should be scope for an earlier resolution of cases, or a narrowing of the issues if you had that greater transparency in the process, so that better-informed decisions could be made at an earlier stage on how the case should proceed.

I think that that goes a bit beyond what we are talking about here on earlier guilty pleas, but I think that all the things connect. A point that the Law Society has made in the past is that, very often, the reason that there is a reluctance to enter an early guilty plea is that the defence is not aware of the full strength of the case or the evidence against the person. In fairness, the defence, to create a level playing field, should be getting more information earlier from the prosecution.

Mr McCartney: At what stage is a plea considered not to be an early guilty plea?

Ms M Campbell: We have avoided trying to define what "earliest reasonable opportunity" is. Indeed, the question of what it means came up quite a lot in the consultation responses. It will be so case-specific. I think that it is something that has to be left to the discretion of the judge to determine in the particular circumstances of a case.

Mr McCartney: I want to be satisfied on a point, in the interests of justice. The temptation for people might be to plead guilty early because they are told that, if they do not plead guilty, they will get a heavier sentence. Something may then come to light that necessitates the plea being changed. Is there a process to fix that?

Ms M Campbell: There is a difference between indicating an intention to enter a guilty plea and the actual admissibility of a formal plea. In those circumstances, I would have thought that, if people have merely indicated, they can still change their plea if something comes to light. Even that indication could help to speed up the case, because, for instance, in Ards, we are finding that the police are having to request fewer forensic exhibits because they are fairly confident that a case will go a particular way. If something were to come to light, and defendants were to say that, having indicated an early guilty plea, they had now reconsidered, they could pursue those other lines of evidence. In a lot of cases, provided that they are aware of the case against them and of what the consequences might be of pleading later, people are able to make a properly informed decision at that early stage.

Mr McCartney: If defendants were to go for an early guilty plea and then change their mind, that information could not form part of the trial. The prosecution could not ask them when in the box whether they had originally said that they had intended to plead guilty and what had made them change their mind.

Ms M Campbell: I think that it would depend on the reason that they were giving for changing their mind. It might be the case that, having discussed it further with their solicitor, they decided that it was not what they had intended to do. I suppose that it is to meet the sorts of circumstances that Mr Dickson was talking about. If people were vulnerable, and it came to light that there was a vulnerability, the solicitor might go back to them and say that they need to look at it again as they were a bit too quick to admit to the charge and perhaps did not understand the full consequences of what they were doing. In that case, I would think that the judge would take that into account.

Mr McCartney: Therefore, it is disclosable. If people indicate that they are going to plead guilty, it can be brought out at trial that they did so.

Mr Walker: I think so. I could withdraw at any time an indication that I am going to plead guilty, up to the point at which I formally enter my plea.

Mr McCartney: I am thinking about the line between somebody being charged with grievous bodily harm or actual bodily harm. You see that in particular in cases of domestic violence, where the leniency of a sentence for grievous bodily harm can be appealed but not the leniency of a sentence for actual bodily harm. We should try to avoid such grey areas: where there is a loophole or where defendants may be advised of the difference between the two charges but, when confronted with that in the witness box, are told: "You pleaded guilty earlier to grievous bodily harm, so why should we believe you that you are not guilty?" I am talking about that sort of grey area.

Ms M Campbell: If defendants had not had the benefit of legal advice at the point at which they made that admission, I think that it would be reasonable to say that they needed to take that advice into account.

Mr Elliott: Thank you for the presentation. I have always had concern about this clause. As has been highlighted already, it has the potential to be exploited to some degree. Those who are charged may feel under some pressure to take a more lenient sentence by pleading guilty, even though they may not be guilty. No matter how you dress it up, that will be an issue, I have no doubt. I do see the reasoning behind it, however, which is to try to stop victims being put through the torment of a case.

I am sure that other parties are aware of this particular case, as the family had lobbied individuals and MLAs. A deal was done between the prosecution and a person who was guilty of an incident in which a person had died. The family of the person who had died felt that they had not got their day in court, because the case did not get to court. I know that that case may be one of the few exceptions, but they felt that they had a lot to offer and that the individual had been dealt with too leniently because they had not been able to tell of the torment and the difficulty that the actions of the accused had caused them. That is the other side of the coin. In that instance, the victims had wanted to go to court.

Ms M Campbell: We asked victims' organisations at an earlier stage whether, if there were more early guilty pleas, victims would feel that way. They felt that you would probably get a different answer from people who had never before given evidence in court than you would from those who had. It is only when you get into the court setting that you realise what a traumatic experience, and how daunting, it can be. What might help to mitigate that is the fact that, in the case of an early guilty plea, a victim should still be able to put forward a written statement, which is provided for elsewhere in the Bill. That is done at the moment on a non-statutory basis, but we are putting it on to a statutory footing —

Mr Elliott: I am sorry for cutting across you, Maura, but are statements always accepted at present?

Ms M Campbell: Yes, as far as I am aware.

Mr Elliott: Always?

Ms M Campbell: I am not aware of any instance in which the judge has refused to accept such a statement.

Mr Elliott: Is the victim always informed of that?

Ms M Campbell: Yes, at the moment, at the decision-to-prosecute stage, victims are informed by the PPS that they have the facility to make a victim statement, so they should be aware of that, and we will certainly be trying to promote the use of victim personal statements on foot of the legislation as well.

Mr A Maginness: I have just one point to make. The duty is on the solicitor, not on counsel.

Ms M Campbell: That is so, and a couple of people raised that point during the consultation.

Mr A Maginness: Say that counsel advises you, you should not be pleading guilty. If the solicitor has already advised you, you should plead guilty.

Ms M Campbell: I suppose that —

Mr A Maginness: I think that it could become problematic in those circumstances. Of course, solicitors cannot say that counsel told them to do this or do that", nor can barristers say that they told the solicitor to do this or do that.

Ms M Campbell: We want to differentiate between making people aware of the fact that there may be credit for an early guilty plea, as distinct from telling them what their plea should be. Those are two different propositions.

Mr A Maginness: Yes.

Ms M Campbell: We would be concerned if counsel, as well as the solicitor, were reminding the client of the credit available. Then, you could be starting to get into the territory that we talked about, where people might start to feel pressurised. If two legal representatives are raising that point with defendants, they may start to feel as though there is more pressure on them to admit their guilt. This is really about making sure that the information is provided to defendants at an early enough stage in the proceedings so that they are aware that there are implications for them as a result of when they enter their plea.

Mr A Maginness: If you are reminding a client, the client could then say to you, "Well, should I plead guilty or not?" It seems that you raise a lot of —

Mr Walker: There are a couple of rationales for the duty not being on counsel. First, we may not have counsel in every case, particularly in a Magistrates' Court. Secondly, we expect that the duty on the solicitor will, in practice, be an enduring duty, by which I mean at different points throughout the preparation for the case: perhaps once in the police station; once when the PPS has disclosed a certain amount of the case; and perhaps again when counsel comes on board. It will be an enduring duty, so, in the situation that you raised, where counsel and the solicitor had a fundamentally different view, one would expect advice to be given again to the client. Essentially, that is why the duty is on the solicitor as a sole point of contact as opposed to it being on counsel as well.

Mr A Maginness: Of course, a barrister could change. A solicitor normally would not change.

Mr Walker: Absolutely. In any event, there will always be a solicitor instructing counsel. That is the point of continuity.

The Chairperson (Mr Ross): We move on to clauses 79 and 80 in Part 8, which cover avoiding delay in criminal proceedings; clause 81, which covers a public prosecutor's summons; clause 83, which covers powers of court security officers; and Part 9, which covers supplementary provisions. Brief us when you are ready, and we will then take questions.

Ms M Campbell: Clauses 79 and 80 create a statutory framework for the management of criminal cases. The provisions are the Department's response to the Committee's recommendation in the report of your inquiry on services for victims and witnesses that case management should be placed on a statutory footing. They are also a response to a similar recommendation that was made by Criminal Justice Inspection. The clauses will create a general duty on everyone working in the criminal justice system to reach a just outcome as speedily as possible and enable the Department to bring forward regulations to set out the duties of the court, the prosecution and the defence in the management of criminal cases.

We have specified that the regulations must take particular account of the needs of victims, witnesses and children. The regulations would aim to make clear what is expected of the defence and the prosecution by the time that a case reaches court. They would empower judges to ensure that the regulations are applied. We hope that they will lead to a reduction in the number of adjournments prior to the start of trial, fewer witnesses being called to court unnecessarily and the speedier progress of cases more generally. We have shared with you proposed amendments to the clauses that were recommended by the Examiner of Statutory Rules following his scrutiny of the Bill's delegated powers memorandum. In essence, the amendments address the Examiner's comments that the two separate regulation-making powers currently in clauses 79 and 80 could be combined into one and that the regulations should be subject to statutory consultation with the Lord Chief Justice, the DPP, the Law Society and the Bar.

In the consultation responses, there was strong support in principle for the provisions. Issues raised included what we mean by "just outcome" and whether it is the right terminology to use, whether the regulations should apply to the Public Prosecution Service and what sanctions could be applied.

Clause 81 will allow public prosecutors to issue a summons to a defendant without first having to get a lay magistrate to sign it. We hope that that will help to reduce the time taken between a decision to prosecute and the first appearance in court. Again, there was a mix of views on that provision during consultation. The Law Society took the view that it is a judicial function and more properly the role of a lay magistrate. The PPS welcomed the new measure, which, they say, will allow it to submit complaints electronically to a court office, as opposed to the current manual system.

We are happy to take questions on the remainder of the Part 8 provisions.

The Chairperson (Mr Ross): Have you any comments specifically on Part 9?

Mr Walker: No, other than to say that Part 9 is fairly technical in nature and contains supplementary provisions pertaining to the Bill as a whole.

The Chairperson (Mr Ross): When we are told that things are technical in nature, it always makes things a little bit more interesting. You always want to delve a little bit more into it.

Clause 86 is one of those clauses that we are seeing increasingly in all Bills that go through the Assembly. Departments like to stick that clause in at the end of a Bill. It is not just in the Northern Ireland Assembly; I think that it happens across the United Kingdom as well.

The title of clause 86 is:

What does that mean?

Mr Walker: That is an excellent question. I will begin by saying that it is a general construction that is used, as you pointed out, in lots of legislation. Legislative counsel will draft something like that to cover various eventualities.

Ms M Campbell: Particularly for a Bill of this size, where there is the potential for an issue to arise in a number of areas that might need some rectification. It is intended to address any minor points that might arise, rather than substantive policy.

The Chairperson (Mr Ross): I would suggest that it is a bad habit that Departments have got into. Are there any limitations on what that might mean? I know that you are saying that it is for minor things, and we often hear that, not just from the Department of Justice. Are there any limitations on it?

Mr Walker: I would need to look at the clause in more detail, to be honest. I am happy to come back to you on that. However, I am sure that the Committee will have had the benefit of the Examiner of Statutory Rules' consideration of delegated powers and the various housekeeping clauses in the Bill. I assume that nothing untoward has been raised by that consideration, and certainly nothing has been raised with the Bill team.

The Chairperson (Mr Ross): I understand that it is legitimate to have it in there. It is just a case of whether it is right for Departments to put it in. The Committee might want to look at that again.

Ms M Campbell: I just want to clarify that that was not something that we specifically asked for in instructions. It was something that the draftsman decided to include, as Graham said, because it is a fairly standard provision.

The Chairperson (Mr Ross): We might want to break that bad habit.

Mr Douglas: Thank you for your presentation. Apologies, Chair, for being late. I could not get out of the other Committee meeting.

Maura, you mentioned clause 79 and talked about a "just outcome". Can you give us some examples of an unjust outcome and what that would mean for young people?

Ms M Campbell: An unjust outcome would be if decisions were taken without all the relevant evidence having been considered. I would like to think that that would not be the case. The formulation "just outcome" was something that we thought best encapsulated what we are trying to achieve here, which is that, in trying to ensure that things progress speedily, we do not do anything that impedes the necessity of a just outcome. The just outcome would always have primacy here, but, within that, we would be ensuring that we are doing all that we can to move cases on as quickly as we can.

Mr McCartney: I go back to the point that the Chair made. Clause 86(2) states:

Does that give the Department the power, if the legislation is passed in the Assembly, to say that it is not taking it forward and just bin it?

Ms M Campbell: If we were not going to take something forward, we would just not commence the provisions.

Mr McCartney: I understand that: I am asking whether the subsection gives you the power to do that. I am not asking you whether you would do it. Does it give the Department the power not to enact this if it did not suit?

Ms M Campbell: The point that I am making is that we could do that even if we did not have that provision by simply not commencing the provisions.

Mr McCartney: I understand that. I do not doubt that the Department wants to do this, but it also states "any ... provision". Say we tabled an amendment that stated that we wanted the preliminary enquiries to go ahead, would the Department have the power to say, "You have already signed up to clause 86, which allows us to repeal or revoke any part, so we are going to repeal or revoke that"?

Mr Walker: In practice, I do not think that that is the intention behind the provision.

Mr McCartney: I am not trying to second-guess anything. I am just asking whether you are giving people the power to do that.

Mr Walker: I cannot say for certain. I will be absolutely honest with you: I am approaching that part from a position of pure ignorance at the moment.

I am happy to take advice on that and come back to you, if that would help.

Mr McCartney: The Bill allows for any part to be taken out, if the Department wants, and nobody could say anything because, by voting for it, we would have given you that power.

Mr Walker: In my limited legislative knowledge, it seems to be a standard provision. Legislative counsel came up with that construction. As I say, I am perfectly happy to take advice and come back to you on that. I might regret saying this, but if —

Mr Douglas: Do not say it, then.

The Chairperson (Mr Ross): This is being recorded by Hansard.

Mr Walker: I am happy to come along during your formal clause-by-clause scrutiny and speak to some of those issues after I have had an opportunity to take advice on them.

Ms M Campbell: We would be happier to respond substantively after discussing it with the legal advisers so that we can be absolutely clear what the effect of this may or may not be.

Mr Walker: They will tell us what its scope is.

Mr McCartney: It reads very simply:

This is the point that the Chair made. Nobody is saying that it has been done in the past, but perhaps you are all persuaded.

Ms M Campbell: I would be keen to clarify with our lawyers what "by order" means and what role the Committee would have in scrutinising anything that we did under the terms of that provision "by order", so we will take that away and get further advice.

The Chairperson (Mr Ross): Members have no further questions.