Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Maura Campbell, Graham Walker and Jean Moore. This meeting is being reported by Hansard, and a transcript will appear on the Assembly website in due course. When you are ready, please start your briefing, and then we will open up for questions.

Ms Maura Campbell (Department of Justice): Thanks very much, Chairman. We are here to update members following the briefing that we provided back in September on the outcome of the consultation on a statutory time limit (STL) scheme for the youth court. Since then, we have reflected on the issues raised by members, which ranged from concerns about the risks to victims of introducing such a scheme, through to a view that we perhaps needed to be more ambitious if we were going to make a meaningful change in the time taken to progress cases involving young people. We are very grateful to members for taking the time to discuss these issues in more depth with us, with a view to identifying a way forward that might be capable of achieving a stronger consensus.

We have also had the benefit of further meetings with a number of stakeholder organisations, and we found the further engagement with them very constructive. From those discussions, we found that there was strong agreement for the principle that victims should not be adversely impacted by the introduction of statutory time limits, either because of cases not proceeding or because the time limits resulted in delays simply being displaced. We also established that, while a number of stakeholders remain firmly of the view that we should be introducing time limits on the basis recommended by youth justice review, they could accept that that may need to be achieved on a phased basis, provided that we set out very clearly our commitment to building on our current proposals and how exactly that would be achieved. In order to demonstrate that commitment, the Minister wrote personally to you in advance of today's briefing, and his letter includes, at annex A, a timeline that sets out key milestones for the introduction and review of a statutory time limits scheme. The letter also sets out how we will seek to ensure that the rights of victims and witnesses and the interests of justice will be protected.

We have been working with the Public Prosecution Service (PPS) to analyse how we would have performed against the time limits had they been in place during 2014-15, with a view to seeing what factors were contributing to delays in the cases where the limit would have been exceeded. In the cases that we have reviewed so far, up to the end of December 2014, 87% would have met the time limit. A review of sample cases indicates that the most common reasons for delay in the remaining 13% of cases were outstanding forensic or medical reports, or delays in obtaining CCTV evidence. The next biggest factor was the summons not being served on the first attempt. A range of other issues were also identified, including difficulties in getting witnesses to attend and non-appearances by the young defendant. As we finalise this exercise, we will work with the agencies to see what more can be done to address those issues, and we will continue to monitor performance very closely, including performance in cases involving excluded offences.

Turning to the next steps, subject to the views expressed by the Committee today, we plan to revert to stakeholders for a pre-consultation on options for an administrative time limit for the earlier part of the process and for a new statutory start point for summons cases; circulate a report on our analysis of performance during 2014-15, which is the exercise I mentioned earlier; finalise and lay draft regulations for an initial STL scheme; introduce the initial scheme by the autumn; and, at the same time, launch a public consultation on options for the earlier statutory start point.

Looking slightly further ahead, we plan to undertake a formal review of the STL schemes after they have been in operation for 12 months as part of our road map to an extended scheme, which will look again at the duration of the time limit, the excluded offences and the use that is being made of extensions. We are very happy to take any questions.

The Chairperson (Mr Ross): Thank you very much. You mentioned at the beginning that most people would agree with the theory behind this. I certainly believe that the shorter the time between the alleged offence and the punishment the better, because it links the two things together, particularly for young people. There is a body of evidence out there that suggests that that is the case.

The last time you came to the Committee there were concerns around whether, if the 120-day limit were breached, the young person could drop off and escape justice as a consequence. You have clarified some of those issues, and you have given us a list of all the offences that are excluded from the scheme, including more serious ones such as violent and sexual offences. What offences will be included in the scheme?

Ms M Campbell: As you say, Chair, a number of offences, such as serious sexual or violent offences, will be excluded because those are the offences that have the greatest impact on victims. We have a good feel for the offences for inclusion in the scheme from the review that we did. A lot of the time, the offences we are talking about are things like criminal damage, theft and lower-level assault.

Ms Jean Moore (Department of Justice): Yes, in 2014, the offences most commonly prosecuted were common assault, 14%; criminal damage, 13%; disorderly behaviour, 8%; theft, 8%; and assault on police, 7%.

There is a huge list of offences, but those are the ones that occur most regularly.

The Chairperson (Mr Ross): Is there any indication of the nature of the offences in the 13% of cases that are not dealt with in 120 days? You said that delays were caused by things like CCTV evidence and forensic reports. Is there any theme in the offences that are not making it through in time? Do they tend to be more serious?

Ms M Campbell: We looked to see if the offences that would be excluded were the ones that always came in over the 120 days. We did not see a clear pattern in offence type. We found a mix of offence types among those that were exceeding 120 days, which suggests to us that we cannot make any assumptions that a particular offence will go through more quickly or take longer. That reinforces for us the need to proactively manage all cases and closely monitor how all of them proceed.

The Chairperson (Mr Ross): If a case has not come to a conclusion after the 120 days, what happens?

Ms M Campbell: After 120 days, there was a concern in some parts that cases could collapse. In practice, those cases would be stayed rather than discontinued. There would be a three-month window in which the Director of Public Prosecutions could reinstitute proceedings. Even if a judge does not allow for the recommencement of proceedings, there is an appeal mechanism. We would have thought that the type of factor that a judge would take into account in deciding whether or not to grant an extension or allow for the reinstitution would be the impact on the victim. There is also the potential for the prosecutor to apply for an extension so that you do not reach the point when the time limit is exhausted; you are given extra time rather than having to stay the case. Again, we would think that the impact on a victim would be a key consideration in those circumstances.

The Chairperson (Mr Ross): Is there a danger that the courts could get clogged up with applications for extensions? Why would that not happen?

Ms M Campbell: Obviously, we would not want to see that because it just replaces one form of delay with another. That is why we looked at performance when setting the duration. We think that there is a bit of challenge with 120 days because a number of cases are not meeting that at the moment, but it is not so short that there would have to be continual applications for extensions.

The Chairperson (Mr Ross): In what circumstances would a court refuse to grant an extension? The reassurance for the Committee is that, if the 120 days are breached, there are safeguards to ensure that young people do not escape justice. In what circumstances would a court say, "No, we are not going to grant an extension. We are not going to allow extra time for this to come through"?

Ms M Campbell: Obviously, that would be a matter for the judge in the case. We are always very careful not to cut across judicial independence or discretion, but I would have thought that a judge would probably take a dimmer view of the delay if he or she felt that best efforts had not been made by the agencies to take the case forward in ways that were within their control.

If there was some factor that they could not control, I would have thought that, in the interests of victims and witnesses, the judge may be inclined to allow a bit of extra time. If we see that things like forensics or medicals are an issue, we need to build in better case tracking to ensure that those do not end up creating the conditions where an extension is needed.

The Chairperson (Mr Ross): The consultation report states that a judge would allow an extension in the "interests of justice". Has consideration been given to a definition for the "interests of justice"? It seems to be a fairly subjective phrase.

Ms M Campbell: That issue came up in the consultation on the Justice Bill, where suggestions were made about whether or not "interests of justice" was the right test to be using when looking at measures designed to tackle delay. The feedback from consultees, though, was that that seems to be a well-established principle that is generally well understood, particularly among the legal profession.

Mr Graham Walker (Department of Justice): The difficulty, Chair, is that, in an individual case, what may be in the interests of justice may vary. However, as Maura said, it is a test that is well established and is understood by the judiciary. It is something that they deal with on a fairly regular basis.

Mr McCartney: Thank you very much for your presentation. You said that 87% of cases are now going through. That is happening without any statutory demand or provision.

Ms M Campbell: Yes, that is the absence of a statutory time limit, so we are hoping that the fact that there is a statutory time limit will mean that that performance should improve.

Mr McCartney: In terms of a comparison, is this provision already in place in Scotland?

Ms M Campbell: There is a similar scheme, but the system operates quite differently in Scotland, so it is difficult to make direct comparisons.

Mr McCartney: Is there any percentage comparison to show how many of the cases in Scotland slip?

Ms M Campbell: We do not have that detail, but we understand that, in Scotland, because they have been operating on the basis of a statutory scheme for a very long time, it is just custom and practice now. We are not aware of it having creating any particular difficulties.

Mr McCartney: You would expect that, with the statutory provision, the figure of 87% would increase.

Ms M Campbell: Yes, we are hopeful that it would.

Mr McCartney: I think that there are four categories of delay in the analysis of cases: forensics, medical evidence, CCTV and summons. Is there a particular analysis as to why those are the factors? Is there not enough forensic or medical evidence? Is it down to expert witnesses or doctors' reports?

Ms M Campbell: We have been aware for a while of the issue that medical reports, for instance, can take some time to get. I suppose that it is about making those responsible for producing those reports aware that a clock is ticking, which may help to put a bit of extra pressure on to get those in on time. There is a forensic strategy in place now that is seeking to make a number of improvements around submissions and processing times for forensics. Sometimes, if there is a large spike in submissions in a particular discipline like biology for instance, or drugs and toxicology, that can slow things down a bit. We will be looking to see what more can be done to ensure that the cases that are subject to the time limit can be identified, flagged and tracked so that, hopefully, those will be given a higher priority.

Mr McCartney: Somewhere along the line, if this is in place, there will be a case where waiting for CCTV footage would put you beyond the limit, but a prosecutor might say, "I have a strong enough case and I don't have to wait for CCTV footage." As things stand, the temptation would be that, because you are not under any pressure, you will wait until all of the evidence is there and you have a more complete case. You might have a case that is coming up to 90 days and someone steps in to ask what CCTV footage will add to the case and that it might not be necessary. Will that type of procedure be in place?

Ms M Campbell: I think that is a very good point about thinking, at an earlier stage, about what evidence is required. Last week, you heard the Lord Chief Justice mention the Ards pilot. In that, we have been finding, where there is earlier engagement between police and prosecutors, that we are able to reduce the number of requests for submissions like forensic reports. Another issue that was highlighted was witness attendance. Do all those witnesses need to be there for the case or could it proceed with fewer witnesses being called? I think that there is a good opportunity to pursue those sorts of issues.

Mr McCartney: What work will be undertaken on the summons issue to improve that? We have no percentage breakdown of those four categories but, even if it is 3% or 4% of your cases, what work will be done to tighten up the procedure of summons?

Ms M Campbell: The key thing with summons will be that, at the moment, there is a bit of a lag: if it does not succeed at the first attempt, it tends to take a while before a second attempt is made. I think that we will seek to reduce the time taken to reissue the summons. Some of the changes that we are making through the Justice Bill will assist with that in that it will provide for the electronic issue of a summons and for the summons to be signed by a prosecutor rather than a lay magistrate. At the moment, it would have to go back a second time to a lay magistrate to be signed.

Mr McCartney: Is the delay at present down to the inability to locate the person, or are there other issues?

Ms Moore: It is largely around service in terms of finding the person. Generally, two attempts are made at postal contact. On occasions, there is a delay in identifying a second address for the second attempt.

Rather than posting it out exactly the same way the second time, some checking is done. Things like that could perhaps be tightened to get the summons out more quickly.

Ms M Campbell: Going back to the point made by the Chair about tightening things up more generally, if the investigative stage is shorter, it should take less time to issue the summons. That means there is less risk that someone will have moved elsewhere and they should be easier to locate.

Mr McCartney: In broad terms, this is a positive move. I think that we have all heard evidence over the years that the quicker a young person is in and out of the system, particularly the first time, the better their chance of staying out of it completely. What is your hope for the 120-day limit in terms of a percentage? What would you like to see the 87% becoming?

Ms M Campbell: Well, as close to 100% as we can achieve. It is difficult to say what we will achieve.

Mr McCartney: But you would want to see a marked increase, something different.

Ms M Campbell: We would like to see, as the norm, 120 days being the maximum time that it would take. We would like some cases to come in even more quickly than that. We do not want that necessarily to be the standard; it very much should be the maximum. If there is scope to get cases through more quickly, we want to see that happening as well.

Mr McCartney: If 13% of your cases were stayed, you could see how the courts could be clogged up.

Mr Elliott: Apologies for missing the presentation. You will appreciate that I still have concerns around the 120 days; it is not implementing the youth justice review proposals. However, I am, obviously, conscious of the difficulties that are posed because those 120 days are not from arrest to disposal. I have said to you before that I would prefer it if that time limit were increased to 160 or 180 days to start with, and then try to work it back. You assured me about the administrative time limit. I see it mentioned in your document but I do not see any indication of what the time limits are in the administrative process.

Ms M Campbell: We see the start point of the administrative process in relation to charge cases as the point of arrest. We will consult with stakeholders on a comparable start point for an administrative time limit for summons cases. It would cover the amount of time that the youth justice review talked about, albeit initially on an administrative basis, but we would then move to make that statutory as well. Part of the key feedback from stakeholders was that, if the focus starts to be applied only at the point where we are currently starting the statutory time limit, there is a risk that a chunk of time at the very start of the process could be ignored. We fully take on board that point and concern. We hope that, by creating the administrative time limit, we will retain the focus on that. We will monitor that closely and report on it to the Criminal Justice Board.

Mr Elliott: How will that administrative time limit feed into the summons cases? That appears to be where there is a significant problem. How will it help to resolve that?

Ms M Campbell: Generally, you have 28 days to proceed with a charge case. With summons, it is more open-ended. We hope that having an administrative time limit in place will mean that a bit more attention is paid to general timeliness for a summons case. We found that the bulk of the delay in summons cases was at the point that is covered by the statutory time limit because that encompasses the attempts at service of summons, which is where we have had the issues that we discussed with Mr McCartney. If it is not served the first time, subsequent attempts can take quite a bit of time to prove successful.

Mr Elliott: I am not so sure that the process you are suggesting will actually resolve that part of the issue. If the summons is not served the first time, what is the impetus to speed up the serving of it?

Ms M Campbell: I think that it is really to ensure that the second attempted service happens more quickly than it does at the moment. There can sometimes be a bit of a lag when it has been unsuccessful at the first attempt before a second attempt is made, but we can see the scope to shorten that time.

Mr Elliott: I think that we are at cross purposes here. Is what you are proposing helping that situation and putting pressure to get someone served who was not served the first time?

Ms M Campbell: I think that the original scheme that we proposed and are now supplementing was encompassing that part of the process anyway, so the addition of the administrative time limit is not really seeking to address the issue that you are talking about, because that would already have been within the scope of the statutory time limit scheme that we were originally talking about.

Mr Walker: The period of summons service is covered by the statutory time limit as it stands. The STL on the summons runs from when the complaint is made. Once the complaint has been made, the PPS endeavours to have the summons served, so the clock is effectively running for that period.

Ms Moore: The STL creates a pressure for the agencies to work together to identify either a fresh address for a young person to track them down or to undertake work more quickly to try to identify where they are.

Mr Elliott: So it effectively deals with that part of the process?

Ms Moore: Yes, it will create a pressure to do that piece of work more quickly because there will be a time limit.

Mr Elliott: If that pressure does not work, what is the fallout? In other words, if your review finds that it does not happen more quickly, what will happen?

Ms M Campbell: Another thing that we have been discussing with the agencies is whether summons is always the best approach to take in certain cases. There are some lower-level cases where it is more appropriate because there are consequences for a young person if you go down the arrest-and-charge route. We think that there may be cases at the moment where a charge may be more suitable. If it is a prolific offender and it is a more serious offence, charge is the route that should be being used so that you reduce the number of cases that proceed by way of summons.

We are also hopeful that youth engagement, by diverting more of the lower-level cases away from the courts at an earlier stage, should take out some of the cases that, traditionally, would have proceeded by way of summons. At the moment, before we start down the route of youth engagement, about two thirds of cases involving young people are proceeding by way of summons. We would like to see that proportion significantly reduce. You then have less of the toing and froing with trying to reattempt the summons, so it should be easier to speed that up.

Mr Douglas: Thank you for your presentation so far. The Minister has said that he does not believe that the system is ready for the proposals of the youth justice review, and he has gone on to talk about a phased approach to STLs. His plan is to introduce an STL scheme by October. What will change between now and October? I know that it is a phased system. If we cannot do it now, how will we be able to have this new system by October? Will you elaborate a wee bit on why the system is not ready at this stage?

Ms M Campbell: I think that the Minister's concern is that, if you were to introduce 120 days, end to end, for youth cases, that would be overambitious for us at the moment and would create too many risks of potential impact on victims. There is also the issue that we were discussing about replacing one form of delay with another when you have lots of applications for extensions or the reinstitution of proceedings.

We are proposing that the statutory element of this should be 120 days but should cover a shorter part of the process, and then we build out from that to, hopefully, over time, have a more end-to-end system of shorter duration. That is what we mean by phasing this in. When we talked to stakeholders, we found that they still would like us to meet the recommendation in the youth justice review, but there was a willingness to work with us to look at how we could stage this in such a way that that could be achieved. Rather than taking an all-or-nothing approach, let us start with something that will acclimatise the system to the rigour of having statutory time limits in place and then build progressively on that.

Mr Douglas: Are there any examples from other jurisdictions?

Ms M Campbell: The use of statutory time limits was looked at in England and Wales, but, other than custody time limits, it was not pursued. As was mentioned, Scotland has had statutory time limits in place for a considerable time. They seem to work quite well in that jurisdiction. That said, because their systems and processes are very different from ours, it is difficult to make a direct read-across.

The Chairperson (Mr Ross): No one else has indicated that they have a question. Thank you very much.