Reducing costs may not bring improved access to justice, writes ADRIAN COLTON
FOR MANY years practitioners in Northern Ireland had become accustomed to working with legislation forged in Westminster, with Northern Ireland legislation tending to follow fairly closely the previously devised Westminster enactment.
The devolution of policing and justice powers will be generally welcomed by practitioners as offering legislative solutions that are specially designed to meet the particular needs of Northern Ireland. This is obviously applicable to the proposed Justice Bill 2010.
The Bar does not quibble with the impetus behind the proposed Justice Bill, namely the desire to do business better, a need to reduce costs and the need to improve access to the justice system.
It does not however take a legally trained mind to recognise the potential tension between these plainly laudable objectives. However, legal practitioners, both solicitors and members of the Bar, who work daily to enhance the interests of clients, will be particularly alive to the difficulties of “doing business better” and at the same time improving access to the justice system in an environment of cost reduction.
It is incumbent on the legal profession to remind government that the maintenance of excellence of service and access to justice requires proper funding. The issues dealt with by the legal profession are of huge importance in the proper functioning of a democratic and civil society. There are a number of matters in the Bill which will be of particular relevance to the professions.
Provisions which deal with vulnerable witnesses in the Crown Court develop existing measures in place for a decade. There is a general recognition that certain witnesses do require special facilities to enable them to give their evidence more effectively and thereby to contribute to the aim of the criminal justice system to ensure just outcomes.
On the other hand it is important to guard the oral tradition of our criminal trial process and ensure that the fairness of a trial is never compromised by impediments being put in the way of the evidence of a witness being tested. This may not always be achieved by the use of video evidence or live link evidence.
It is generally recognised that witnesses make a bigger impact on juries when they give evidence live in court. We need to protect against the risk of the dilution of oral evidence in trials and avoid the danger that special measures become routine or the norm and that the giving of evidence in the normal way does not receive sufficient consideration.
There is a risk that the over or automatic use of special measures will have the opposite effect of that intended and may result in a dilution of the effect of such evidence. This would not necessarily serve the interests of justice.
The provisions of the Bill relating to new alternatives to prosecution will be generally welcome. The diversion of low level crimes out of the formal criminal justice system has the capacity not only to ease pressure in the court system and reduce delay but also to provide a more measured response to offending at the lowest end of the criminal spectrum.
However it is essential that the power to issue fixed penalty notices is exercised responsibly by police officers. The issuing of a notice is effectively an invitation to an individual to accept responsibility for a criminal offence; it remains important that the individual is fully advised as to the consequences of acceptance. There is a risk that this could have a potential disproportionate impact on younger and vulnerable males in particular and here the guidelines issued by the Department and the PSNI will be important.
There is also a danger that the “easy fix” of the penalty notice may result in the penalisation of behaviour that would previously attract only verbal censure without resort to a formal response.
The Bar is particularly concerned about the provisions in the Bill for a new means test system for the provision of criminal legal aid. It is imperative that those who appear before the criminal courts charged with a serious crime are afforded proper representation and that the most vulnerable in our society have access to legal services. We would have a serious concern that means testing, particularly in the Crown Court, could result in miscarriages of justice.
The impact of a new means test would be felt particularly by those who are in reasonably well paid employment. For example, would it be right that, say, a school teacher who is accused of assault of a pupil is denied the opportunity for legal aid for a Crown Court trial that may last for a number of weeks? Equally would it be right that say a nurse who is charged with an offence of causing death by dangerous driving is not provided with legal aid to defend a lengthy trial?
Those denied legal aid in these types of circumstances will be unable to fund the necessary expert evidence that is often required in difficult Crown Court trials. If the state proposes to bring a criminal charge against an individual it should ensure that that person has the necessary means to defend that charge. This provision of the Bill has potentially very serious consequences for the administration of justice in this jurisdiction and needs to be very carefully scrutinised by the Justice Committee before enacted.
The Bill also deals with the question of litigation funding arrangements for civil disputes and in particular money damages claims. Whilst this is a complex area it is important that Northern Ireland learns the lessons from England and Wales where complicated funding arrangements for money damages claims have resulted in significant difficulties and have not had the desired effect of increasing access to justice.
Adrian Colton QC is chairman of the Bar Council of Northern Ireland