Criminal Justice (Committal Reform) Bill: Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 2:30 pm on 23rd November 2021.

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Clause 1 (Abolition of preliminary investigations)

Debate resumed on amendment No 1, which amendment was:

In page 1, line 5, after "repealed" insert-



"save in respect of preliminary investigation proceedings resulting from a direction under Article 29A". — [Mr Allister.]

The following amendments stood on the Marshalled List:

No 2: In page 1, line 5, after "accordingly" insert-



"save in so far as is necessary to give effect to Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981". — [Mr Allister.]

No 3: In clause 4, page 5, line 43, leave out from "for" to end of line 44 and insert-



"for the word 'documents' substitute 'copy of the notice of committal'". — [Mrs Long (The Minister of Justice).]

No 4: In schedule 1, page 9, line 13, leave out paragraph 18. — [Mr Allister.]

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

I call Mr Jim Allister to resume addressing amendment No 1 and the other amendments in the group.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Before lunch, I was dealing primarily with the backstory to these amendments. I highlighted the fact that what I seek to do is what the Assembly thought that it had done and, in fact, had done in 2015, but it was thwarted by the Department taking upon itself the decision to defy the Assembly and never to make a commencement order in respect of the changes that were made.

Photo of Naomi Long Naomi Long Alliance

I thank the Member for giving way. He will take into account the fact that the 2015 legislation could not be commenced because of the election in 2016. He may also remember that, shortly after the election in 2016, we had the collapse of the Assembly and another election in 2017. We had a three-year hiatus during that period, so the only real opportunity for that legislation to be commenced has been since 2020. Of course, in the light of the evidence that was placed before me, I believed that it was better to revisit the issue than simply to commence the legislation that was already on the books. I do not believe that that legislation would have served the purpose of either its original intention or, indeed, the subsequent reports that emerged during that time.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The date of Royal Assent to the 2015 Bill, which made it the Act, was 24 July 2015. The Assembly continued to sit until January 2017, so there was an 18-month period during which commencement orders could have been made.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

In a moment.

The explanation, such as it is, that the Minister has just given is, of course, totally different from the explanation that was apparently given to the Committee, as reflected in paragraph 69 of its report. I give way.

Photo of Naomi Long Naomi Long Alliance

First, the Member again ignores the fact that, between 2015 and 2017, there was an election in 2016. There was a hiatus in the Assembly in 2016, so it is not true that it sat the entire time during that period. It is also not the case that legislation can be commenced swiftly, particularly in such a technical area. Even the passing of this legislation will not lead to its immediate commencement. Preparatory work and operationalisation need to be done before any Bill can be commenced, so it is not unusual for commencement to take, for example, a year. It is likely to take a year for commencement of the Domestic Abuse and Civil Proceedings Act 2021 to get under way, and that is legislation that had unanimous support in the House. The conspiracy theories are perhaps best left to others. We should focus on the content of the debate.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

That would be helpful, now that we have had a bit of chronology. Thank you.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Yes. Even if, as the Minister suggests, we take out the 2016 election, there was certainly more than a year of the Executive and the Assembly sitting between July 2015 and January 2017. We have been back now almost two years. Neither the Minister nor her predecessor ever thought to come to the House to say, "In 2015, the House passed certain legislation, but, for the following reasons, it has not been commenced". The House was kept in the dark. Never once did the Minister come to the House and give an explanation of why she was not moving a commencement order. When her officials gave evidence to the Committee, if the Committee report is an accurate reflection, there was no talk about, "We did not have time"; it was, "We changed our minds because three wise men decided, in the Fresh Start Agreement, that it would be better to do something else".

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I will, but the Minister will have an opportunity to speak later, no doubt.

Photo of Naomi Long Naomi Long Alliance

It is incredibly difficult to understand how one can claim that the House was kept in the dark. I have announced, updated and set out my legislative programme and brought legislation to the House, and the Bill has gone through its First Stage and Second Stage. It has gone through Committee Stage. No one has been in the dark during the process, and, to be clear, the explanation set out by my Department is accurate. There were, as I said in my original intervention, subsequent reports and interventions by others that made it all the more important that we revisit the issue. As I said, there is no conspiracy here, and there is no lack of transparency. The Member should be careful about insinuating that there has been.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

One would have thought that, if what the Minister now says is the full story, the explanatory and financial memorandum would have made that clear. However, it does not even mention the fact that the commencement order was never moved.

Whatever way you look at this, we are in a situation where, six and a half years ago, the Assembly decided what the law should be on the subject. Then, despite that, the Department, which seems to think that it is above the House, decided, because some others had taken a different view, that it would not bother with that. Six and a half years later, here we are with me reading out a law that was approved by the House six and a half years ago and never actioned. One wonders how many other commencement orders have never been made in respect of legislation passed by the House.

So that it is clear what my amendments would do, they would reinstate what is in article 29A. I want to take a little time, because I was rushed just before lunch, in explaining practically what that would mean. It would mean that the vast majority of committal proceedings would not be by preliminary investigation; in other words, no evidence would be called. If an accused thought it appropriate to seek to have evidence called, under article 29A(2) they, the accused, could apply to the court for direction that a preliminary investigation be held. However, it is not there for the asking. Under 29A, the court has to weigh the matter and determine it on the question of whether it would be "in the interests of justice". In determining whether it would be in the interests of justice, 29A(5) lays down the clear test. This is what the magistrate has to be persuaded of; the onus is on the accused. He has to bring the magistrate to the point of believing that oral evidence would be "in the interests of justice". The tests in determining that are to:

"have regard to ... the nature of the offence".

So there could be a distinction between, maybe, a sexual offence, a violent offence and a non-violent one. The nature of the offence has to be put into the balance. One is conscious that there are people concerned about the victims of sexual offences, for example, so that their interests are particularly regarded. Not only does it say, in 29A(5), that the judge must take into account "the nature of the offence"; it says:

"the interests of the persons likely to be witnesses".

It is both the nature of the offence and the frailty or otherwise of the witness. Only if the magistrate is persuaded that, taking those things into account, it is nonetheless in the interests of justice to hear oral evidence is oral evidence ever heard. That does not seem to me to be an imposition too far; indeed, the 2015 resolution was a compromise in itself — very much so. Then we arrived at a situation that was acceptable to this House, where the nature of the witness and the nature of the offence were determinant issues in weighing up what was in the interests of justice.

Photo of Doug Beattie Doug Beattie UUP

I thank the Member for giving way. On the very point that you have talked about, article 29A(2) says:

"An accused may apply to the court for a direction".

You outlined clearly that, under paragraph (5), the court will then make a decision. What happens if the court makes a decision and says, "No" to that request? Is there or do you foresee there being a right of appeal? Would that slow the process down?

Photo of Jim Allister Jim Allister Traditional Unionist Voice 3:00 pm, 23rd November 2021

No. It is clear that you have to get a direction from the Magistrates' Court. You have to require a direction for oral evidence for oral evidence to be heard. So, no, I do not anticipate there being any appeal provision in that. I suppose that you could have a "case stated" appeal. That is a breed or type of appeal that allows you, if you wanted to argue that the judge got the law wrong on something, to cause him to state a case to the higher court. However, there is no rerun appeal such as you would have elsewhere. If you were convicted of theft in the petty sessions, you would have the right of appeal to the County Court etc. My understanding is that you would not have that right of appeal and you could get the oral evidence only on foot of a direction obtained through all of those hurdles. The purpose of the amendments is to bring us back to where, we thought, we were in 2015 in respect of that compromise.

The question then arises of why it matters. We need to understand that committal proceedings are an integral part of the trial process. When you say that you have a right to a fair hearing under article 6 of the European Convention, it encompasses the final hearing, the committal hearing, everything in between and, indeed, some things before. The process has to meet the article 6 test. It is not a process that is likely to be abused. If you take the situation that existed before we even got to this point in the law, in 2014, only 74 out of the hundreds and thousands of committals that were made went by preliminary investigation. That is a minuscule amount. Of those 74, 18 resulted in the person not being returned for trial; in other words, the magistrate threw it out on foot of the evidence at the time. The rest went on to trial. Of course, the corollary of that is that the public purse was saved the cost of 18 trials, a not insignificant thing.

The whole idea of a committal process is to see whether there is a prima facie case. That is the test. At the ultimate end of the criminal process, there can only be guilt beyond all reasonable doubt, but, for a committal, all that you have to do is show that there is a prima facie case, which is a much lower threshold. Of course, the reason why many are content with a return on the papers by way of preliminary examination (PE) is simply that they want to get to the Crown Court as quickly as possible to get it over with, or they might know full well that they have no answer and there is no point quibbling over it, or they might decide that they will quibble over some of the evidence but will keep their powder dry, as it were, until they get to the Crown Court and not give the prosecution a dry run at it. There are all sorts of reasons why preliminary investigations and the calling of evidence are small in number, but it is still an important right to be able to call evidence.

Really, what it comes down to at the end of the day is this: where a judge says that it is in the interest of justice that evidence should be heard at a preliminary stage, knowing that that is in a very small number of cases, does the House think it right that, nonetheless, we should eschew the interest of justice and say, "No. There will be no evidence heard, because of our ideology that we don't do that", which seems to prevail in the Department of Justice, or do we think that there is nothing wrong with a fail-safe that says, "If a magistrate is persuaded that it is in the interest of justice to hear evidence, it should be heard", and he decides, having heard the evidence, whether the case reaches the threshold of a prima facie case?

I will say one other thing. If you have no committal process with a capacity for oral evidence, everyone in this country who goes on trial will do so on the foot of statements that have never even been sworn by the deponents, never mind tested. Remember what a set of preliminary inquiry papers are: they are a collection of statements from the complainants etc. They are rarely the words of the complainant. Invariably, they are the product of a police officer talking to the complainant and putting the complainant's story in the police officer's words. That is then typed up and presented as the preliminary inquiry papers, which are never sworn. On that basis, a citizen is returned for trial. In some cases, courtesy of the Gillen changes, depending on the nature of the charge and the nature of the witness, you can have a situation in which that witness is only allowed to be asked the questions that the judge approves. You have to hand in the questions that you are going to ask, and if the judge says, "No, you can't ask that", you cannot ask it. Therefore, you can have a really impossible situation in which someone is returned for trial without sworn evidence on the papers and with statements effectively written by police officers, to which the complainant has assented, and, even when they get to trial, there is no free and open cross-examination, because the questions are limited to those approved by the judge. That is where we have got to in the Province on some of those matters.

I am saying that the very least that we should do is to build into that system the protection that, if an accused can persuade a magistrate that it is in the interest of justice to hear some of the evidence in order to decide whether it passes the test and whether it is worth a trial, we should have that provision, rather than saying, "No, no, no". What are we scared of in allowing evidence to be tested? What is it that we think is not desirable about subjecting something to an interest of justice test? That is the question that the House has to grapple with in this matter.

What I am proposing is very modest. It is the least that, I believe, is possible. It is not something that anyone should have any difficulties with. The test of it all is this: is it in the interest of justice? Are we not interested in the interest of justice? Do we not trust our magistrates to decide what is in the interest of justice? If we do not, that is another matter. If we do, what is there to lose from that approach? I say to the House that it is time to return to the compromise of 2015 and embrace that in the Bill.

That is why I have tabled amendment Nos 1 and 2, and I say to the House that, if amendment Nos 1 and 2 are accepted, I will not need to oppose that clauses 1 and 2 stand part because they will have been satisfactorily amended. The choice that I am putting to the House is to restore ourselves to the 2015 position. I think that that is rational, reasonable and right. My other amendment, amendment No 4, is a corollary to amendment Nos 1 and 2. It is necessary to adjust the schedule by removing paragraph 18 because paragraph 18 seeks to repeal section 7 of the 2015 Act, which brought in article 29A.

I will leave it there. I trust that I have made it clear what the ambition is. I think that it is a modest but worthwhile ambition. I hope that the Minister could embrace it as being in the interests of justice.

Photo of Mervyn Storey Mervyn Storey DUP

Before addressing the amendments, with your indulgence, Mr Deputy Speaker, I wish to make some general remarks about the Bill in my capacity as Chair of the Justice Committee. I pay tribute to my predecessor, now the First Minister, who at that stage was the Chair of the Committee, and to the work of his colleagues in the preparation of the report. The Committee supports the Bill, which will remove the need for victims and witnesses to have to give general evidence pre-Crown Court trial by providing for the abolition of preliminary investigations and mixed committals. It also seeks to get more cases to the Crown Court more quickly by expanding the range of evidence to which direct committal will apply, and it makes a number of technical amendments to smooth the committal process.

The Bill is deemed to be a step forward in the Department's aim of abolishing the traditional committal process entirely, and the Committee is of the view that the phased approach being taken is an appropriate one. As the then Committee Chair outlined during the Second Stage debate on the principles of the Bill, there have been many calls for reform or, indeed, eradication of the committal process over recent years. In addition to the time that it takes for cases to progress through the criminal justice system, one of the key concerns about the process is the impact that it has on victims and on witnesses, who may be required to give oral evidence at the committal stage as well as at the trial itself. The experience of giving oral evidence can be traumatic, particularly under cross-examination, and has a significant impact. The Bill should improve the experiences of victims and witnesses as they will not be required to do that twice for the same case.

Following the Second Stage, the Committee published a media signposting notice in the main newspapers inviting written evidence on the Bill, and it wrote to a range of key stakeholders. Some 16 written submissions were received. The then Lord Chief Justice, Sir Declan Morgan, also provided a very useful commentary on a number of issues on behalf of the judiciary. The Committee took oral evidence from the Bar of Northern Ireland, the Law Society and the Public Prosecution Service, and the issues that were raised in the written and oral evidence were explored with the Department of Justice in writing and in oral evidence sessions. The Committee also sought the advice of the Examiner of Statutory Rules on whether the range of powers in the Bill to make subordinate legislation are appropriate, and, to assist consideration of the issues highlighted in the evidence, it commissioned two research papers on the reform of the criminal justice process in other jurisdictions and on statutory time limits. The Committee considered the Bill's provisions and the issues raised at 15 meetings before agreeing its report on the Bill at its meeting on 10 June 2021.

I thank members of the Committee for their contribution to the robust and careful scrutiny of the Bill and the issues raised in the evidence during Committee Stage. I also thank the organisations that provided helpful written evidence and particularly the representatives of the organisations who attended to provide oral evidence. Their contributions greatly assisted our understanding of the committal reform process in general and the changes that the Bill will implement. I also record the Committee's thanks to the departmental officials who provided additional information and clarification in writing and in oral evidence during the process.

The Committee also appreciates the support and assistance provided by Assembly staff, including the researcher, the Examiner of Statutory Rules, the communications office, Assembly Broadcasting and staff from Hansard, who all played an important role in supporting the Committee to undertake its legislative scrutiny role in general and with the Committee Stage of the Bill in particular.

Finally, I thank the Committee team, who supported the Committee not just to complete the Committee Stage of the Bill but to progress the Damages (Return on Investment) Bill and the Protection from Stalking Bill, which were also under consideration by the Committee during that period.

It may assist the Assembly's consideration of the amendments to clauses 1 and 2 and to the schedule, tabled by Mr Allister, if I briefly outline the Committee's consideration of the provisions of the Bill, which he has already referred to. One of the stated aims of the Bill is to help to speed up justice and reduce delay in the criminal justice system. In the written and oral evidence that the Committee received, there were conflicting views on whether the Bill will have a noticeable impact in that regard. Concerns were expressed that it will simply shift delays from one part of the system to another. The Committee believes that early engagement between all parties, as well as effective case management procedures, is vital and that it is essential that the necessary frameworks and resources are in the right place to prevent delays being shifted in that way and to make a material reduction in the time taken for cases to be completed.

The Committee is not convinced that the Bill is a silver bullet but views it as one element of a wider programme of work that is required to speed up the justice system. Clearly, there are issues in other stages of the process. Data from the Department indicates that much of the delay comes at the earlier stages before the case reaches court. That illustrates the need for more robust investigatory and disclosure processes. It is vital, therefore, that any reallocation of resources is not focused solely on the courts but encompasses the early stages of the process.

Despite the aim of the Bill being to reduce delay, the Committee remains concerned about the time taken for cases to progress through the criminal justice system. That issue has been evidenced for a considerable number of years without any demonstrable progress being made. The Committee therefore indicated that it wants to receive regular reports on the specific impact that the Bill has on reducing overall delay in the criminal justice system.

Notwithstanding the questions about whether the Bill will have an impact on delays in the system, the majority of those who responded to the Committee's call for evidence expressed support for the Bill and for the removal of oral evidence at committal stage. References were made to the impact that that has on victims and witnesses and to the additional stress and anxiety caused by the potential of having to give evidence twice. Instead of testing evidence to determine whether there is a prima facie case, some also contended that it was used as a tactic to test the resilience of the victim. The then Lord Chief Justice, Sir Declan Morgan, noted that a number of judges expressed concern that it may occasionally be used in that way.

The Committee also wants to see consideration being given to capturing how legislation improves the experiences of victims and witnesses once it is enacted. The main concerns about the Bill came from the Law Society of Northern Ireland and the Bar of Northern Ireland. They raised a number of issues that are relevant to the amendments we are considering, including whether there is a need to abolish oral evidence completely at committal stage or to instead apply the interest of justice test provided for in the Justice Act (Northern Ireland) 2015; the impact of the abolition of oral evidence and the right to a fair trial; the removal of preliminary investigations; and the mixed committal as a filter for weak or vexatious prosecutions.

Under the provisions of the 2015 Act the accused can, in certain circumstances, be directly transferred to the Crown Court for trial without the need for a traditional committal hearing. As introduced at the time, the Justice Bill also sought to abolish oral evidence at committal stage, but it was amended by the Assembly to provide for oral evidence to be called if a judge is satisfied that it is in the interests of justice to do so, as we heard from Mr Allister.

In its scrutiny of the Bill, the Committee ascertained that the interests of justice provisions in the Justice Act 2015 were never formally commenced, and it appreciates that concerns were expressed about that. The Committee sought an explanation from the Department regarding why those were not commenced, and it requested clarification and information on the other issues and concerns that have been outlined.

The Committee also requested further information from the Department on the Criminal Procedure Act 2021 in the Republic of Ireland, which introduced pretrial hearings in that jurisdiction, and how it compared with the current position in Northern Ireland and the position as changed by the Bill. In addition, it asked for that to be specifically covered in the research paper. Details of the Committee's consideration of those issues are set out in the report on the Bill.

The Committee was unable to assess the validity of the assertions made in the evidence that was received that the interest of justice test, as provided for in the 2015 Act, would appropriately safeguard the rights of all parties, given that it was never enacted, but it noted the recommendations from a number of reviews and reports that called for the implementation of direct committal. The Committee was advised that a defendant's right to a fair trial is not compromised by the removal of preliminary investigations or mixed committals as that right is secured at the trial stage of the criminal proceedings.

In weighing up the small number of cases to which the interest of justice test may apply against the thematic effect that the requirements to give oral evidence pretrial may have on victims and witnesses, the Committee concluded that the removal of oral evidence at committal stage will reassure victims and witnesses that they will not have to give oral evidence or be subject to cross-examination twice. As the Lord Chief Justice advised, it is difficult to argue for the retention of the process by which a small number of cases may be eliminated when considered against the risk of an injurious impact on victims and added delay to case progression, which affects not only victims and witnesses but defendants, who may spend a significant time in custody awaiting trial. Having considered the evidence received, the Committee agreed that it was content with the provisions of the Bill as drafted and does not seek to make any amendments to them.

After its consideration of the Bill was completed, the Committee was advised by the Minister of her intention to table an amendment to the Bill to make a small change. That is amendment No 3. As it currently stands in the Bill, any request for a legal aid certificate to the Crown Court can be made only after evidence has been shared with the court. To prevent any delay in providing legal representation for the defendant, the amendment will ensure that the legal aid certificate can be applied for at any stage after the case is directly committed to the Crown Court. The Committee noted the rationale for and the text of the amendment at its meeting on 14 October.

I have concluded my comments as the Chair of the Justice Committee. I will now make a few comments as a Member of the House and a member of the DUP. I thank the Member who spoke previously for the detail that he provided about the amendments. We should respect the experience that he brings to these matters, given his long history and association with things legal.

Our party fully supports the aims of tackling avoidable delay in the criminal justice system. I do not think that anybody in the House would argue that that is not a commendable thing to seek to achieve. We all know of the trauma that victims can go through when there is delay in seeking to get to a conclusion. There is a particularly pressing need to remove existing barriers to more efficient and timely court proceedings. That will benefit victims, first and foremost, but it will also ensure that accused persons have access to a fair and expeditious trial.

We take on board the points made by the Member for North Antrim. There is a need to ensure that the step change in relation to committal proceedings does not dilute the principles of justice or lead to otherwise weak cases being brought to trial in the Crown Court. We support the amendments, therefore, that protect the principles of preliminary investigations in those distinct cases in which a defendant seeks to claim a trial by jury.

The point has been made about this House: while it is far from perfect in its construct, it is what we have. How many times have we heard Members talk about the primacy of what the Assembly has decided on other issues? I may differ with them on a particular issue because my party or others were not able to secure enough votes after the relevant debate, but this is, for what it is worth and despite the weakness that comes from a five-party mandatory coalition, the House that has been appointed to pass legislation.

I share the concern — maybe that is putting it mildly — of Mr Allister. It was good to hear him use the word "compromise", because it is not something that he is given to doing. However, it is part of the process here: we try to come to an agreed position. That was done, and there was a settled will of the Assembly. I heard the Minister's interventions, but I am not convinced by what she said. That is because, in addition to paragraph 69 of the Justice Committee's report, which Mr Allister mentioned, we have the Department's clause-by-clause response to various comments made by the Bar of Northern Ireland. The Department states:

"Through the Justice Bill in 2015, the Department previously sought to abolish the option to hear oral evidence from victims and witnesses at a committal hearing. The experience of giving sometimes traumatic oral evidence, particularly under cross-examination, at both the committal hearing and then again at the Crown Court ... However, this did not receive sufficient support".

It did not receive support at all. The Department continues:

"and, instead, an amendment was made that ensured oral evidence could only be called if a judge was satisfied that the interests of justice require it."

Then it says this:

"However, in 2016"

— not in 2017 or 2018 —

"the three person panel"

— the three wise men; I know that we are heading towards Christmas, but I did not think that we were going to get there this soon —

"appointed by the Executive to report on a strategy for disbanding paramilitary groups recommended that ‘the Department of Justice should bring forward draft legislation to further reform committal proceedings to remove the need for oral evidence before trial’."

No account seems to have been taken by the Executive or the Department of what had been approved and agreed in the House. It is for those reasons —

Photo of Naomi Long Naomi Long Alliance 3:15 pm, 23rd November 2021

I thank the Member for giving way. It is wrong to say that no account was taken of what was agreed in the House. A programme board was set up by the Department to take through the commencement of the 2015 Act. The Fresh Start Agreement was not published by three individuals; it was accepted by all five parties in the Executive, and an action plan was produced on that basis. That was further reinforced by a commitment to committal reform as part of the New Decade, New Approach (NDNA) agreement. So, it was not the case that the Department ignored the decision that the House made in 2015; instead, that was overtaken by the decision of the Executive, including the Member's party, on how this would move forward. It would not have made sense for the Department to, potentially, do committal reform twice. Therefore, the effort that was being invested in bringing forward the committal reform from 2015 was redirected towards that which the Executive had agreed and reinforced their commitment to in 2020.

Photo of Mervyn Storey Mervyn Storey DUP 3:30 pm, 23rd November 2021

I thank the Minister for giving us that explanation. It raises a further question, however, which is this: what has primacy, the Executive or the House? Is it what was enacted, or is it subsequent political agreements? The Minister is right that it is a five-party mandatory coalition. I was not part of the deliberations at the time, but I have subsequently been moved to take up the position that I have now as Chair of the Justice Committee, and, having given it consideration, I believe that there is merit in what is being said about the House. I do not think that the NDNA agreement or any other document can direct this legislation to go in some other way, with limited reference to what happened in the House in 2015. If you read through the Committee report, you will see that the reasons given by the Department for why the 2015 legislation was not enacted are pretty light. The Member also provided an answer about the timescale. If you look at the timescale, you will see that there was surely ample time for the legislation that had been approved by the House to be enacted.

My next point is important. The Minister provided assurance about the capacity for evidence to be tested at an early stage in the Crown Court in the absence of preliminary investigations or mixed committals. That will need to be watched closely going forward. On balance, however, it is important that we strike a balance with the amendments between trying to reinstate what was approved and progressing the Bill. This is not about alleging that the amendments are about wrecking the Bill: they are not. I do not think that that was the Member's intention when the amendments were tabled, nor I do take that to be the case from anything that he has said in the House. I have heard the Member speak on many previous occasions in the House and know that, if he wants to wreck something, he is the one who can dismantle it, but I do not get the sense from him today that that is his intention or what he is about.

It is also striking that the Independent Reviewer of Terrorism Legislation made some observations in his latest report. He stated:

"Compared to the rest of the United Kingdom, the slow pace and procedural heaviness of criminal proceedings in Northern Ireland has a deleterious impact on the use of terrorism legislation: Individuals accused of terrorism offences either risk spending unacceptably long on remand waiting for trial, or are released on bail despite the seriousness of the offences of which they are accused".

Special advocate support offices are used in other parts of the UK to minimise the risk of hearings being delayed, but there is not one in Northern Ireland.

That is just one other aspect of the caseload, but it underlines the deep and far-reaching challenges facing our criminal justice system. No one should therefore underestimate the challenges that the Minister and her Department face, but, on balance, following my comments and what has been said previously, it is our party's intention to support amendment Nos 1 and 2.

Photo of Jemma Dolan Jemma Dolan Sinn Féin

I, too, express my thanks and appreciation to the Committee staff for getting us to this stage. Sinn Féin supports the Bill as drafted and the Justice Minister's amendment No 3. It is a small, technical amendment to the Bill that followed an issue raised by the Office of the Legislative Counsel. It will ensure that legal aid certificates can be issued more quickly, which, in turn, will ensure that there are no delays in providing legal representation for the defendant. We are happy to support that.

Sinn Féin will oppose Jim Allister's amendments, which are an attempt to obstruct the primary objectives of the Bill in order to preserve the status quo. It is the same status quo that has helped lead us to a failing criminal justice system that has led to constant delays to justice and has, report after report tells us, failed victims. Amendment Nos 1, 2 and 4 go completely against the principles of the Bill, which are to speed up justice and better protect victims and witnesses. They attempt to preserve aspects of the 2015 legislation that first sought to deal with the issue of committal reform, despite the landscape changing significantly since then. The committal reform Bill presents an opportunity to usher in a new era for the criminal justice system by setting in motion a process to eradicate the outdated and unnecessary committal process. The Bill's primary objective is to improve the operation of the criminal justice system by reforming committal proceedings, which is the procedure used to determine whether sufficient evidence is available to justify putting a person on trial in the Crown Court. We know that the Department's aim in the longer term is to eradicate the traditional process entirely. Sinn Féin supports that aim.

In its 2018 report, 'Speeding Up Justice', the Audit Office said that committal reform is needed urgently to cut delay in the justice system. That sentiment has been backed up in hugely important reports such as the Fresh Start panel report, the Gillen review of serious sexual offences cases and a number of CJINI reports. Furthermore, it was a key commitment in the New Decade, New Approach deal and remains one to which we are committed.

It is not just about speeding up the justice system. We are all acutely aware of the difficulties and challenges faced by often vulnerable victims and witnesses of serious crimes as they attempt to navigate the daunting and intimidating criminal justice system, particularly in cases such as rape or serious sexual assault. We know how difficult and traumatising it can be for victims to be cross-examined under oath at the Crown Court, so it is inexcusable that the current system allows victims to be doubly traumatised by having to go through that process twice. Worse than that, the associated stress, anxiety and fear that is faced by those victims is only compounded by the fact that around a third of people who request a preliminary inquiry or mixed committal hearing revert to written-only evidence on the day of that hearing.

Committal reform is supported by all the key criminal justice organisations and has the support of the office of the Chief Justice. The system is being abused, and it is time to get work done. We support the Bill and oppose the amendments.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party

As the SDLP's member of the Justice Committee, I support the Criminal Justice (Committal Reform) Bill. The primary objective of the Bill is to improve the operation of the criminal justice system by reforming committal proceedings. As the explanatory and financial memorandum recognises, the process of oral hearings and cross-examination before a case is presented to the Crown Court can have a significant impact on victims and witnesses, who have to give often traumatic evidence more than once. The wrong that is being served to victims and witnesses during the committal period is in itself a wrong that is worth fixing in legislation. The arguments that have been made for that are clearly evidenced in the Gillen report of 2019. In addition to those considerations is the often cumbersome nature of the hearings. It is cited that the oral evidence can also be lengthy, with hearings lasting up to one or two days, and that problems are often experienced in organising witnesses to attend, which can lead to adjournments and increased delays in the Magistrates' Court before a case is sent to the Crown Court. The SDLP, therefore, endeavours to support the safeguarding of witnesses and victims, while aiming to streamline the judicial process more efficiently and remove any additional costs that arise as a consequence of delays.

The thinking that has underpinned the draft legislation comes from the Fresh Start panel of 2016, the 2018 Northern Ireland Audit Office report, the 2018 CJINI 'Without Witness' report, the 2019 Gillen review and the 2020 New Decade, New Approach agreement. During our scrutiny of the Bill at Committee Stage, we satisfied ourselves that the objective of taking a significant step to safeguard witnesses and victims in the justice system can be delivered by expanding the list of offences for direct committal and removing preliminary investigations that are based on oral evidence. That is a welcome development that weeds out some of the trauma and intimidation that can risk access to justice.

We recognise also how the lag in the committal reform process can add to the delay in case resolution, but I remain to be convinced that the Bill's speeding up of criminal justice will effectively address that delay. My concerns are based on the evidence that we heard of how operational difficulties, such as work on phone triage and technical work that is required ahead of presenting evidence, remain significant blockages in the system. It is therefore unlikely that the removal of committal will result in a sudden, steady flow of cases through the Crown Court; indeed, without a serious eye to the commissioning of resources, there is a strong possibility that a bottleneck situation could be created at the entry level of the Crown Court.

The SDLP supports the Bill as a positive next step in reforming the justice system. We do so while keeping an open mind to the fact that the new judicial landscape will take time to become embedded. Weighing any loss in value derived from the committal process in the cases that have been listed against the empowering nature of the reform in supporting victims and witnesses, we believe that it is in the interests of justice to proceed.

Having considered the Member's amendments, I am not entirely unsympathetic to their objective. As the Chair of the Committee stated, the Member is not proposing the amendments in order to break the Bill. An important principle — when a judgement has been made by the House, any Department should act on it — has been played out on the Floor. I heard the Minister's chronological account, explaining why that did not happen, but I see that there was a window of time during which it could have happened. That said, the question that I have to ask myself is this: had that legislation been commenced, would I look at the amendments in a different light? I know that they are presented in a way to suggest that it had been commenced, and the Member who tabled the amendments gave reasons for that. I assure the Member that it is in my nature not to turn out anything before I am satisfied that it could not be reused or made fit for purpose; I have a utility room at home that gives evidence of that. When looking at the amendments, the question I had to ask myself was this: if, in, rightly, doing everything that we can to safeguard a cohort of people whom we recognise as perhaps being, at the least, uncomfortable inside the justice system, we look at an amendment that would preserve legislation that, by my reading of it, provides a wide caveat that it is for the magistrate to decide in all cases those in which it may be in the interest of justice to proceed using the preliminary inquiry, that is exactly the opposite of what we are trying to do. One hand is going in one direction, and this legislation takes us to a different place. Having said that, I am mindful that, in the South of Ireland, the Government are consciously contemplating the introduction of preliminary hearings in an effort to speed up their justice system. The Minister there, Helen McEntee, has been noting the stressful effect that delays can have on all parties, particularly victims and witnesses.

The legislation that the amendments seek to preserve contains, in my reading, too wide a discretion for the courts and could significantly undermine the safeguarding work in the Bill. The SDLP is passionately supportive of safeguarding the protections for victims and witnesses, and we must assure ourselves that any proposals or efforts to seek the retention or reintroduction of anything that resembles a committal process at any time must have tailored, inbuilt protections for the victims and witnesses whom we are trying to safeguard today.

The proposed amendments do not do that. They open the goalposts far too wide and create a problem. I appreciate the intent behind them, and I can see where the Member is coming from. Unfortunately, in their current state, we are not in any position to support those amendments.

In conclusion, the SDLP will support the Bill and amendment No 3, but we will oppose amendments Nos 1, 2 and 4.

Photo of Doug Beattie Doug Beattie UUP 3:45 pm, 23rd November 2021

I think that we all agree that our criminal justice system is far too slow. That undermines justice. It makes it really difficult to keep witnesses focused and able to maintain their ability to act as witnesses. Public confidence is also undermined by our slow justice system. We give bail to people with serious accusations and charges against them because the system is far too slow to deal with them. When people see that, it undermines the system. They think that our criminal justice system is not working, which is not particularly true.

The aim of the Bill is to speed up the criminal justice system. At the end of the day, it is not just about getting justice more quickly. That is important for the victims, of course, but it is also important for society to see that justice happens and happens in a timely manner. If you follow the justice process in Northern Ireland and compare it to justice in other parts of the United Kingdom, you will see that it is far slower. The Bill is about speeding up the justice process and protecting witnesses. That is important, and that is the intent.

It is very rare that I come to a debate having not made up my mind, and that I listen to what people have to say in order to decide whether I will go one way or the other. I have listened intently to what has been said. The amendments attempt to revive article 29A of the 2015 Act. I get all the nuances about why it did not come in and should have come in, and that is fine. We can look back at the 2015 Act, if we wish. Trying to revive article 29A as an escape valve is absolutely laudable. It is perfectly right to bring that forward for debate. That is a good and sensible amendment. However, I look at that in contrast to what we are trying to achieve. We are trying to speed up the system in order to get justice more quickly and help victims. Would that amendment, in some ways, slow that down? Playing one off the other, I think that it would. I asked Mr Allister about:

"an accused may apply to the court for a direction that a preliminary investigation is to be held."

He was quite right when he outlined that the court would make a ruling in the circumstances. However, my concern is that it would still take an awful lot of time. If more and more people do it, that would clog up the system. I do have concerns, and I think —

Photo of Doug Beattie Doug Beattie UUP

Yes, of course.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Surely past experience shows that very few people seek to go down the preliminary investigation route. The Assembly has to answer this question: is expedition in those few cases more important than justice? By rejecting those amendments, the Assembly would be running away from making the interests of justice front and centre in those cases. Can that be right?

Photo of Doug Beattie Doug Beattie UUP

There are two points in that. We need to try to future-proof stuff. While there may be a small number who put in for a preliminary investigation now, that does not mean that it will be a small number in the years to come. If you believe in our justice system, you will believe that justice can be delivered in the Crown Court and that it does not just have to be delivered in the preliminary investigations. If the preliminary investigations are taken away, that does not mean that justice will not be served. I still feel that justice will be served.

As was said earlier, the amendment is too wide. My concern — it is my only concern — is that it would undermine the very reason why we are progressing the Bill, which is to speed up justice. It is a valid amendment, but, unfortunately, it is not an amendment that I can support. I will support the Bill, as drafted. I will not support amendment Nos 1, 2 or 4, but I will support amendment No 3.

Photo of Stewart Dickson Stewart Dickson Alliance

Like others, I welcome the opportunity to debate the Consideration Stage of the committal reform Bill. It will greatly improve and modernise our justice system, as others have said, and it will, hopefully, deliver an enhanced victim experience by accelerating justice and ensure that the taxpayer receives value for money. The Bill has taken into account the recommendations from the Fresh Start Agreement, the Gillen review and the Northern Ireland Audit Office. It will end the need to give pretrial oral evidence at a committal hearing, which, unfortunately, can be a traumatic experience for victims in the justice system. More than that, if we do not address the issue now, people in Northern Ireland will continue to be affected by a long, drawn-out system, and delays in the system, which elevates costs for little tangible gain. It is worth noting that the committal process was abolished in England and Wales a number of years ago. I do not believe that there are any substantive reports that indicate that what happened as a consequence of that caused any detriment.

I support the Bill and the amendment tabled by the Department, which, although technical, refers to the issues of legal aid certification, but I cannot support the subsequent amendments from Mr Allister, which aim to revert provisions that were already legislated for in 2015. We have heard the Minister explain why the change in that regard has not happened. Committal reform has been on the agenda for some time. Much of this process was started by a previous Justice Minister David Ford. He began with an ambitious programme for reform when he was Justice Minister, and, today, the Minister is continuing that tradition in reforming and improving our current system. The Bill is a vital step towards reforming the justice system, and it will improve it for the defendant, the victim and the taxpayer. It will ensure that the process is faster and that rights are respected, and, in doing so, it will build confidence in our justice system and in how it serves all the people of Northern Ireland.

Photo of Mervyn Storey Mervyn Storey DUP

I thank the Member for giving way. I am always concerned when Members talk in the House about how something will give a greater return for the taxpayer or, as is the case in this instance, say that a measure will dramatically speed up the justice process. Members must realise that there are over 600 people on remand, currently. That is my understanding. We are not seeing the system speeding up, and we are not seeing the outcomes envisaged in what was proposed by a previous Justice Minister. Sometimes, we have to anchor some of these reforms, as I said previously, not only to one element but to a wider piece of work including other elements of the judicial process, so that we get better outcomes. It should be grounded in that sense of reality. There should be a recognition of the number of people who are currently on remand, albeit it is only one aspect of the judicial system. There are over 600 people on remand. That is a huge cost to the taxpayer.

Photo of Stewart Dickson Stewart Dickson Alliance

I thank the Member for the intervention. I do not disagree, but I will defer to the Minister.

Photo of Naomi Long Naomi Long Alliance

I thank my colleague for giving way. I wish to put two things on record regarding the intervention by the Committee Chair. First, prior to COVID, we were seeing improvements in throughput in the criminal justice system. In fact, we had seen around an 11% increase, I think, in the number of cases being cleared. With COVID, we now have a backlog to clear in addition to trying to speed up justice. There are genuine challenges in that. I hope that he will support me as I make bids in order to continue to be able to invest in the criminal justice system.

Secondly, no one is arguing that the Bill is a silver bullet that will unlock everything in the justice system. It would be wrong to suggest that it was, but an important point is that the provision is a key part of the criminal justice system to which everyone on the Criminal Justice Board, which regularly looks at how to speed up the justice system, has committed and believes needs to be taken forward as a matter of urgency. The judiciary, represented by the Lady Chief Justice, as well as the Public Prosecution Service (PPS), the PSNI and all those other moving parts in the justice system have had an opportunity to discuss it in the Criminal Justice Board and to fully support.

Photo of Stewart Dickson Stewart Dickson Alliance

I thank the Member and the Minister for their interventions. I also thank the Minister for clearly setting out the complexity of and interrelationship between all the changes.

I agree with the Member opposite, who is the Chair of the Committee, that, while the Bill makes a fundamental change and will bring forward additional changes, there are other aspects of the justice system that require reform. I, for one, believe that there are far too many people in prison and that we need a much wider range of interventions that go way beyond the Department of Justice and its remit. There are responsibilities for the Department of Health and the Department of Education. If we were to tackle issues and produce interventions at much earlier ages and stages in people's lives, before they, unfortunately, end up in prison, many of the reforms would be of even greater benefit.

We have to take the current system into consideration. It is slow, and there are delays. The Bill is a key building block to deliver that change. Delaying justice for defendants infringes on their right to a fair trial within a reasonable time frame, and that is required and outlined by article 6 of the European Convention on Human Rights.

I welcome the legislation and the amendment from the Department. The Bill is not just about accelerating justice, but it is a major step in addressing the cost that victims and defendants face when their lives are put on hold by a system that currently holds them back.

Photo of Peter Weir Peter Weir DUP

I am tempted to say, "I rise to speak", but that may be the wrong terminology given my circumstances. At the start of my contribution, I declare an interest as a non-practising member of the Bar. I cannot and do not claim to have the eminence of the proposer of the amendments. The proposer of the amendments has been eminent in the law for many years; to paraphrase, he was eminent at the Bar before my arrival was imminent. In my short period at the Bar, I never reached the dizzy heights that the Member who proposed the amendments reached, though, once during my pupillage, I served under him.

When it comes to the amendments, I appreciate the departmental amendment. It is fairly uncontroversial, and I do not think the House will spend a great deal of time probing it on the basis that everyone accepts it. In many ways, there was a certain level of disappointment that there was a need for the Member to table the amendments, because, I believe, the position on preliminary investigations that we unanimously reached in 2015 — at least, those of us who were here in 2015 — was reasonably balanced.

I have listened to the debate, and I do not want to go too far into the exchange between the Minister and the proposer of the amendments about the failure to commence the legislation from 2015. It is disappointing. We appreciate that, when the House passes legislation containing commencement provisions, it sometimes can commence immediately on Royal Assent, and, at other times, it can take a bit longer. It somewhat beggars belief that the legislation has not been commenced six and a half years later. I have listened to the debate, and I have no desire to get into questions of the whys and wherefores and to either second-guess or impugn the motivation of the Department or the Minister, but, having listened to the rationale, I am not particularly convinced of the merits of that level of delay. We would have been in a better position had we reached the point where the amendments did not have to be brought forward and had what seemed to be a relatively settled position in 2015 been simply honoured by way of commencement.

When we look at the criminal justice system and the trial system, we see that the overriding onus on us all is the preservation and protection of justice. For those who are involved in the criminal justice system, that impacts on a wide range of people. It can be justice for the victims of crime, justice for witnesses, justice to ensure that there is a fair trial for defendants and, from that perspective, justice in the wider context of what is in society's best interests as a whole. To that extent, again — it goes to the heart of the amendments — that has a range of particular connotations.

I accept and support the motivation and general principles of the Bill. Any actions that we can take to ensure that we can remove undue delay from the criminal justice system are good. To that extent, therefore, I was very happy to support the Bill at Second Stage. Whether or not the amendments are successful today, I will be happy to continue to support the right motivations in the Bill.

In terms of the balances and the interests of justice, it is certainly in the interests of justice that it delivers for the public purse in a reasonable fashion. Committal proceedings play an important role in that regard. It is also important that justice is timely. Consequently, even if the amendments are accepted, the general principle, which essentially says that, in the vast majority of cases, a preliminary investigation — the initial stage of committal proceedings — is not necessary from a time point of view, is a case that is well made. That should be the general presumption in our system.

It is undoubtedly the case — the Chair of the Committee indicated a similar view — that, while I believe that the legislation is a step forward, it is not a silver bullet. It will not eliminate all actions that could lead to delays. It does not mean that we will have a faster justice system. It is also the case that the burden that could be placed on victims of crime and on witnesses should be kept to a minimum. The general principle that essentially says that, where possible, we do not subject witnesses to having to give the same evidence twice is an important one.

All those things need to be balanced, but, when trials do not need to proceed, we should ensure that they do not proceed unnecessarily and that there is a fair trial. Consequently, the protections that are potentially being put in place by Mr Allister's amendments represent a reasonable compromise.

Mr Beattie's argument that there is a genuine concern that those protections might be used to clog up the system does not bear a relationship with the real world of trials. In the vast majority of trials, as Mr Allister indicated, defendants are not looking to initiate preliminary investigations in order to delay the system. Indeed, in many ways, given that the only hurdle to be overcome at committal stage is for the prosecution to show that there is a prima facie case, the opportunity for a defendant to be exonerated by way of being found not guilty is a much easier route when it comes to full trial. The prosecution has a much greater burden to show that it is beyond reasonable doubt.

The argument that that would be used in some way as a form of deterrent, either to the prosecution or, indeed, to witnesses, would hold water more strongly were it in some way an automatic right that was being triggered. However, that can only be where it is through the very clear filtration of a judge deciding in that particular set of circumstances, which, even in current circumstances, is relatively rare, that it is in the overwhelming interests of justice.

To succeed at a preliminary investigation, then, the defendant's counsel would have to show that there is not even a prima facie case against the defendant. That is an extremely difficult burden for a defendant to prove. What it does mean is that there is a filtration mechanism for cases without real merit that were taken against the interests of justice. Access to that mechanism is only through a judge deciding that it is in the interests of justice. As was indicated, it is not on the basis of these amendments, one of which is an appeal mechanism on the grounds of merit. That would not differ from a normal trial. It would apply only when the judge made an error in law. On a different level, many Members across the Chamber will have experience of dealing with non-criminal behaviour in, for example, a social security appeal tribunal. They will know how difficult it is, having failed on the merits of a case, to find a successful argument in law for why that verdict should be overturned.

This will be put in place in an extremely rare set of situations. However, if it means that, in the small number of cases where there is not a prima facie case, we can stop an expensive public trial and serve the interests of justice, that seems to be a balanced situation.

I spoke at the outset of the eminence of the Member who proposes this. Undoubtedly, the 2015 position and, indeed, the amendments that he puts forward today represent a compromise. Clearly, many who are from a strong legal background are much more eminent than I am — some may even claim greater eminence than the proposer of the amendments, although I am sure that that might be questioned by others — and they would go much further than these amendments.

It was in 2015, and it is today, a compromise. I welcome that compromise and the position taken by the proposer of the amendments. This is a reasonable route that does not impugn or impede the general thrust of the Bill. The thrust to reduce and remove undue delay is right. Having the safeguard of the amendments means that I am willing to go through the Lobbies to support Mr Allister's compromise. I am similarly prepared to support the Minister's amendment.

Photo of Paula Bradshaw Paula Bradshaw Alliance 4:00 pm, 23rd November 2021

I support amendment No 3, which is to enable the issuing of legal aid certificates, and I will oppose all other amendments.

The other amendments are wrecking amendments, as highlighted by other Members. From A Fresh Start to the Gillen review to New Decade, New Approach, it has been agreed that the Bill is a vital reform to create a more efficient and, indeed, fundamentally fairer justice system. The only people who would want to wreck the Bill are those who wish to ignore a good practice on behalf of victims and who want to act against the interests of victims.

It is well established, as the Member proposing the amendments well knows, that oral evidence at committal stage is not just unnecessary but contrary to good process. Doing away with it will stop the intimidation of victims and witnesses, thus enabling more cases to proceed. Most of us think that more cases proceeding, more victims being heard and more perpetrators being punished is a good thing.

With regard to terrorist suspects, removal of oral evidence at committal stage —

Photo of Paula Bradshaw Paula Bradshaw Alliance

I will just finish this, and then I will give way.

— is a recommendation of the Fresh Start panel and the Northern Ireland Audit Office. It should be noted, therefore, that those supporting these wrecking amendments are opposing Audit Office recommendations.

I will give way now.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Member talks about good process. Does she really think that it is good process that someone can be returned for trial in Northern Ireland without there even being demonstrated at any point that there is a prima facie case against them? Is that good process?

Photo of Naomi Long Naomi Long Alliance

With respect, it is not the case that people are simply returned for trial in the way that the Member suggests. An evidentiary threshold has to be met by, for example, the PPS.

What we are introducing here is the right for somebody to cross-examine witnesses at the earliest point in the process. Prima facie evidence can be established on paper, so there is no need for there to be such a continuation.

[Interruption.]

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Sorry, but can we have just one Member speaking at a time, please? Minister, please continue.

Photo of Naomi Long Naomi Long Alliance

There is no need for there to be a continuation with oral hearings. For their own reasons, however, it may suit some in the justice system for oral hearings to continue, because they will be required to represent their clients and so on, but removing them from the process does not speed up justice and does not impact on the effectiveness of justice. As I said, the Criminal Justice Board has oversight of this and has agreed that it is a better way forward than what was previously agreed.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Sorry, but the Member has the Floor. Please continue, Ms Bradshaw.

Photo of Paula Bradshaw Paula Bradshaw Alliance

Thank you, Mr Deputy Speaker. In effect, removal of oral evidence at committal stage removes the stage at which intimidation can be a factor and reduces the trauma of the process for victims and witnesses. Ultimately, it is a fundamental part of a Bill that improves the experiences of victims and witnesses and thus gives them greater and truer access to justice.

In cases of serious sexual offences such as rape, Criminal Justice Inspection has spoken in favour of what we are doing with the Bill, while noting that the no-bill application process remains in order to provide an ongoing safeguard against spurious allegations.

In the end, the Bill is not about the technicalities of how the justice system works but about human beings. In that context, we should all remember that what we choose to prioritise in our public pronouncements matters. Access to justice —

Photo of Mervyn Storey Mervyn Storey DUP

Will the Member give way?

Photo of Mervyn Storey Mervyn Storey DUP

I thank the Member for getting to that point. What is being proposed is equally about human beings. Sometimes, in the House, we have a very narrow view of what constitutes a human being. I have heard the Member in the House rightly defend, in other circumstances, minorities, small groups, people who are isolated and people who are vulnerable. If that is the argument, surely she has to carry it across. I am disappointed that the Minister made an assertion — I can say this because I have never been and never will have the ability to be a member of the legal profession — and almost assumed that, somehow, there is an attempt here to satisfy someone's mates and that, because there is payment for representing clients, this is part of trying to ensure that those who have a vested interest be considered. That is unfair to many in the legal system who work extremely hard in very challenging and difficult circumstances.

Photo of Paula Bradshaw Paula Bradshaw Alliance

The Member is somewhat misrepresenting the Minister's position on that. I will also pick up on his point about marginalised and minority groups. Very few sections of society are more vulnerable than victims of rape, for example. It is those people, and other victims of crime, for whom I am standing up and taking this position today.

As I say, access to justice matters most of all for the victims, and I trust that most of us will recognise that the system needs to change in order to give those victims a voice free from the intimidation and terror about which some have spoken so courageously in recent weeks. I commend the Bill and amendment No 3.

Photo of Rachel Woods Rachel Woods Green

I do not intend to speak for very long. The Chair gave a very good overview of the Committee's scrutiny over almost the past year. Thanks has to go to the Committee Clerk and the staff.

Many have pointed to the abolishing of the committal stage as a means of addressing some delays in the criminal justice system, and that rationale has been put to us previously. It is an argument that has been made across the world during reform of judicial processes, and, as we know, it is not new to Northern Ireland. The Assembly debated the matter previously, and the Committee discussed, at length, delay in the system, the effect of removing the committal stage and whether removing it would do what it says on the tin. I met a number of stakeholders and individuals — I thank them for their time — who were concerned that removing the committal stage would not reduce delay, as most of the delay lies elsewhere in the system, including, for example, the time taken to get forensic evidence and information and the time taken to compile police reports and complete the investigatory stage. As I said previously, I have some sympathy with those arguments.

That is reflected in the Committee's report as well. This legislation alone will not fully address the delays in the criminal justice system, nor is it intended to do so solely. Much more can be done, as others have said.

I appreciate that a larger piece of work is going on with the criminal justice agencies on this issue. New information-sharing systems are being trialled and developed, and further work is planned as part of the committal reform programme. However, challenges remain. In my view, those still-existing challenges are not a reason for not removing the committal stage, which the Gillen review recommended in order to deal with unnecessary delay and the re-traumatisation of victims having to provide evidence where it is not strictly necessary. The Department must have a way of reviewing and reporting on the legislation before us and its effect on the system and of involving the Committee to ensure that the post-legislative scrutiny is there and to ensure that the legislation is having the intended effect: looking at the impact on victims, as well as possible unintended consequences of delay simply being moved further up the line, as it were. I hope that this review, and the post-legislative scrutiny, will occur and involve the Committee and others. I will touch on this later, in my comments on Mr Allister's amendments.

I stress again the importance of resourcing the Bill. Ministers and Departments do not like having commitments and resourcing stated in primary legislation, which is why I did not push this in Committee, but we heard, loud and clear, from organisations pointing towards resource deficits. The Bill will require resourcing, specifically with regard to the amendment on legal aid. It is a matter that I, and other members of the Committee, would like further clarity on in future. I accept that the Department has produced figures on that for the Committee but, for the record, there will be an impact on legal aid with this Bill. The modelling and the changes that will happen require a new framework to be put in place, as we have with the departmental amendment in front of us. Whilst technical, it addresses some of that in the legislation, and I will support it. However, the wider figures and impact need to be discussed in future.

I turn to Mr Allister's amendments. I appreciate the Member's consistency on this matter. I was pleased to engage with him on the Bill, and also on his amendments and points of view. I note his opposition to clauses 1 and 2. Granted, he was opposed to those at Second Stage and before, but while I will not support the amendments in his name, amendment Nos 1 and 2, at this stage, I understand his rationale and arguments on process. The 2015 Justice Act was amended by the House, giving a residual discretion to the magistrate in the interest of justice, and those regulations were voted for by the majority of the House but were not commenced, as we have heard. However, the Committee was unable to assess the validity of the assertions made during the scrutiny stage that the "interests of justice" test provided for in the 2015 Act, which Mr Allister seeks to claw back through the amendments, would appropriately safeguard the rights of all parties as stated, because the provisions had not been enacted.

Notwithstanding the arguments made in favour of removing this so-called test and not having it in the Bill before us, this leads me to question — not just on this specific issue; it goes much broader than this — how it is decided within Departments when they enact and when they do not. If it is the will of the House, and the law, what are the processes in place to ensure that legislation is enacted and processes followed up on? It also gives rise to questions at the level of post-legislative scrutiny, given by this House over the years or, indeed, by the Committees that have scrutinised legislation previously. That is something to consider for all MLAs, present and future. If we pass legislation, with the Department of whatever charged with commencing regulations, to what extent are we and Committees, or the House, considering that down the line? A balance needs to be struck in additional pressures on Committees and what outcomes can be achieved. However, it seems beneficial for everyone involved — the Minister of whatever Department, the Department, the Committee and the public — to know that, if legislation is passed, it is reviewed, meets the purpose and is actually the law.

That is of concern to me, and that is why I have some sympathy with Mr Allister's amendments — not something that I thought that I would say today — despite not agreeing totally with the content, as I do not think that it is needed for the purposes of the more victim-centred approach and removing the requirement to give traumatic evidence more than once. We need to remind ourselves why we are here. We are implementing, in part, recommendations from the Gillen report, 'A Fresh Start' and the Audit Office. Our criminal justice system needs reform, full stop.

The Bill will not solve all the issues that I touched on, including delays, the need for increased resources for forensics, front-loading, communication and information sharing, so I do not necessarily buy the argument that it is about addressing delay wholly. Much more needs to be done to tackle that, and that will come from matters that do not involve primary legislation. However, the Bill should remove the unnecessary re-traumatisation of victims and witnesses, simplify the justice system, in part, and provide for somewhat of a balance among other measures that are being looked at in the courts and the justice system.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party 4:15 pm, 23rd November 2021

Mar athrú, ar thaobh mo láimhe deise, tá Gerry Carroll. For a change, on my right hand, I have Gerry Carroll.

Photo of Gerry Carroll Gerry Carroll People Before Profit Alliance

Thank you. It is just for the debate. It is not for any other reason, Mr Deputy Speaker

[Laughter.]

We have great sympathy for and solidarity with victims, particularly those of traumatising crimes, such as those of a serious sexual or abusive nature, who are made to wait unacceptable lengths of time to get verdicts. From the testimony of such victims, it is clear that that wait can be traumatising, as can be having to give testimony more than once. As other Members said, Gillen outlined in his report that we must deal with those cases more appropriately and that victims of and, indeed, witnesses to such crimes should not have to give testimony numerous times. We must ensure, however, that following Mr Gillen's advice for improving the system for victims does not encroach on the right to a fair trial and a fair process.

In that sense, I share some of the concerns that were raised by the CAJ in response to a discussion report on the reform of the committal process. It stated:

"While increased efficiency in the ... system is a laudable aim, it must be subservient to the need to ensure that the inherent safeguards in the ... system, comprising the right to challenge the prosecution ... and [challenge] prosecution witnesses at an earlier stage than trial".

A balance can be struck between ensuring that victims and witnesses are not made unnecessarily to testify more than once and not endure a prolonged journey through the justice system while, at the same time, ensuring the right to fair process for a defendant. I am concerned that there were far too few references to the latter in the Committee discussions or documents from the Minister that I saw relating to the Bill. There is also far too little evidence that the measures in the Bill would shorten the process for victims. Therefore, while we would have hoped for a more robust cause for direct committal in the event of a guilty plea in cases of serious sexual child abuse or other such crimes, we are not comfortable with the sweeping approach that has been set out by the Minister in the Bill, which will go far beyond that and remove any opportunity for a judge to review oral evidence before trial.

We are content to support the amendments, which will put in place what was agreed by the House in 2015. I find myself shocked that the Minister, whose party speaks, often loudly, about transparency, considers it acceptable that a democratic decision of the House would not be implemented because of any report, no matter how serious, or because of the will of the five-party Executive without a vote. I find it ludicrous that the Executive have utterly failed to deliver on many commitments from previous agreements, including the Fresh Start Agreement and New Decade, New Approach, yet the Minister took those agreements as sufficient reason not to implement a law that was passed six years ago because the Executive apparently changed their mind. To be honest, I have more sympathy with her explanation that there was little time to implement the law, but that almost becomes a moot point when she, in her own words, said that the commitment to changing the process in closed-door Executive deals was a reason to delay implementation. What will happen if the Bill falls? Would she finally implement the 2015 measures?

I am disappointed that there has not been a more reassuring attempt to ensure an as-efficient-as-possible trial process for victims while not unpicking the right of defendants to a fair process.

Photo of Naomi Long Naomi Long Alliance

Before I address the amendments that were tabled by Mr Allister, I want to speak to my amendment, amendment No 3. That is a relatively minor technical amendment to clause 4(9)(c) of the Bill, which will ensure that the ability to apply for a legal aid certificate remains relatively consistent with current practice. Legal aid certificates are generally requested in the Magistrates' Court. However, there are some occasions when that will also happen in the Crown Court, for example, when there is a change in legal counsel. Clause 4(9)(c) of the Bill, as drafted, means that any requests for criminal legal aid certificates in the Crown Court can only be granted after evidence has formally been shared with the court. That may cause unnecessary delay in appointing legal representation as the sharing of evidence may take place after the defendant has been committed to the Crown Court. The minor amendment means that a Crown Court judge could grant a criminal legal aid certificate and read the notice of committal, rather than having to wait until the evidence is formally shared. I assure Mr Carroll, based on what he just said, that that is entirely to protect the rights of the defendant.

I move now to the amendments proposed by Mr Allister. Mr Allister spoke at length on his proposed amendments to clause 1 and to the schedule. He also gave notice of his intention to oppose that clauses 1 and 2 stand part of the Bill. I want to address the amendments and the opposition proposed by him.

Through the Justice Bill in 2015, my Department sought to abolish the option to hear oral evidence from victims and witnesses at a committal hearing. The experience of giving sometimes traumatic oral evidence, particularly under cross-examination, at a committal hearing and again at a Crown Court trial, can have a significantly detrimental impact on victims and witnesses. However, disappointingly, that did not receive sufficient support during that Bill's passage. Instead, an amendment was made that ensured that oral evidence could be called if a judge was satisfied that the interest of justice required it. That fell short of that Bill's original intention. That is the article that Mr Allister refers to in his amendments. In effect, he is proposing that the provisions set out in the Justice Act (Northern Ireland) 2015 should stand. Let me explain why you should reject those amendments and support the Bill.

In 2016, as plans to implement the processes defined by the 2015 Act were in their development phase, a pivotal change in support on that matter emerged. The three-person panel appointed by the Executive to report on a strategy for disbanding paramilitary groups recommended:

"While it is crucial that criminal proceedings should follow due process and comply with human rights, justice delayed is justice denied. The time it takes for cases to come to court could be reduced, securing more convictions and building community confidence in the criminal justice system. To this end, we recommend that the Department of Justice should bring forward draft legislation to further reform committal proceedings to remove the need for oral evidence before trial".

That was accepted by the Executive in their action plan published in July 2016. Clauses 1 and 2 of the Bill are designed specifically to give effect to recommendation A10 of that Fresh Start panel report. Therefore, it is not just my Department calling for that change. The changes are required to fulfil a Fresh Start commitment that was made after 2015. Mr Allister's proposed amendments fall short, and if they are accepted, my Department and the Executive cannot deliver against that commitment.

A number of other political agreements and independent scrutiny reports have also called for changes to the present committal process. If Mr Allister and others are concerned that it happened only as a result of three people on a panel, I assure them that that is not the case. The other reports that have called for reform of the committal process in its entirety are the Northern Ireland Audit Office's 'Speeding up justice' report from 2018, the Criminal Justice Inspection NI's 'Without Witness' report from 2018 and 'New Decade, New Approach' from 2020.

It is worth noting that the longer-term intention of my Department is to remove the traditional committal process entirely, ensuring that cases are directly committed to the Crown Court as soon as it is clear that the matter is serious enough to proceed on indictment. That is in line with a commitment arising from the Northern Ireland Audit Office's 2018 report, 'Speeding up justice'. That report found:

"The reform of committal is the Department’s first move towards eradicating a judicial process which is widely considered as providing minimal value whilst imposing onerous demands upon victims and witnesses ... At its worst, committal can effectively amount to a preliminary trial, with victims and witnesses required to provide testimony which they will have to deliver again at trial in the Crown Court. This is, at the least, stressful to participants and in some cases may deter them from attending for trial."

It is also worth reminding the House of Sir John Gillen's 'Report into the law and procedures in serious sexual offences in Northern Ireland' from 2019, in which he noted that the committal process had either been reformed or abolished in a number of the jurisdictions that he considered.

Sir John said of committal proceedings that:

"The paucity of cases where any material benefit is achieved for the defendant is completely outweighed by the disproportionate cost of and stressful nature of such hearings. More importantly is the fact that precisely the same issues of liability can be dealt with by the Crown Court at an equally early stage."

Sir John went on to conclude that:

"I can see no justification, therefore, for continuing with the present system, which is wasteful of time, costs and resources in circumstances where the vast majority of cases will be transferred anyway to the Crown Court."

We have been engaged in a discussion, both by the Committee Chair and Mr Allister, around process, and other Members have referred to those process issues as well. I want to address them, but I do not want the process issues that happened during a unique period in this Assembly's lifespan, when we had a period of three years' hiatus, two elections — one immediately after the other — and a short period before the COVID crisis when we came back 18 months ago, to deflect from the substance of the Bill, which is what should be of concern to us as we decide how to vote.

Section 7(2) of the Justice Act related to the ability of a judge to hear oral evidence in the interests of justice. That was included in the 2015 Act as the result of an amendment from Jim Allister. The Department had originally intended to abolish oral evidence at the committal hearing as part of that Act, as you have heard. The Department had established a multi-agency project group to implement the committal reforms provided for in that Act. When the Fresh Start three-person panel on disbandment of paramilitaries produced its report, it included a recommendation for the Department to introduce further legislation to abolish the use of oral evidence as part of the traditional committal process. The Department's focus, therefore, turned to introducing new draft legislation to deliver that recommendation. The Assembly then collapsed in 2017. I remind Members that it was not just Alliance Justice Ministers who presided over those decisions, although some feel very comfortable in pointing the finger at me today. There have been three Justice Ministers during that time, not one.

Section 7(2) of the Justice Act 2015 replicates the amendments proposed to the Bill today that mean that oral evidence can still be called if a judge is satisfied that the interests of justice require it. As I said earlier in the debate, those amendments fall short of the Fresh Start commitment in the Executive's action plan. I want this Bill to provide reassurance to victims and witnesses that they cannot be called to provide oral evidence at the committal hearing, and that is consistent with the various expert reports, including the Gillen review, a report from the Criminal Justice Inspection Northern Ireland and a report from the Northern Ireland Audit Office, in addition to the report from the Fresh Start panel.

It also has to be understood that the Fresh Start three-person panel recommendations were accepted by the Executive in their Fresh Start action plan, which was published in July 2018. It was unclear, at that time, how long there would not be an Assembly in place, and the focus was therefore on preparations to deliver what the Executive agreed in that action plan. There was no other cover for Departments to make alternative provisions. Committal reform represents a significant change, and there would be a risk, obviously, of trying to change that system twice, with some changes from the 2015 Act and then further changes from a subsequent committal reform Bill, not to mention the nugatory expenditure and effort that that would entail. The committal reform Bill before the House today is a stronger piece of legislation, which will help to tackle delay in the most serious cases that are heard in the Crown Court and will improve the experience of victims and witnesses on their journey through the criminal justice system.

Non-commencement in that regard is a red herring today. Had the 2015 legislation been commenced, we would still be here today because of subsequent commitments that were made by the Executive, not the previous Executive three times ago but the current Executive, in NDNA. We would still have had to bring this Bill forward today. I do not want people to be deflected by those process issues from considering the substantive issues that actually impact on victims and witnesses.

The Bill also includes proposals to directly commit more cases to the Crown Court, which will see those cases bypass the traditional committal process entirely and, with that, will create the option of providing oral evidence at that stage. For cases that are not included in the initial roll-out of direct committal, there will, however, continue to be a traditional committal process. Victims and witnesses can presently be called on to provide oral evidence at that stage. Without the changes that are proposed in the Bill, that process will continue. Clauses 1 and 2 will ensure that those victims and witnesses do not have to provide oral evidence and face cross-examination as part of the committal process.

I have heard all too often of the impact on vulnerable victims and witnesses who have had to give traumatic evidence not once but twice as part of our current criminal justice process. I have witnessed the anguish of victims, victims' families and witnesses who have been subjected and exposed to the most horrendous crimes — rape, sexual assault and murder — only to be further traumatised by the very process that is supposed to bring them justice. I have searched for words of comfort and explanations for why we have to continue with a process that does not appear to provide any significant purpose. It does not provide an effective means by which to filter cases, and it adds unnecessary delay to an already complex process.

I agree that the number of that type of committal hearing is low. For example, in 2019, only 6% of committal hearings, involving 109 defendants, were processed by calling for oral evidence. In addition, there are occasions when victims and witnesses are called to give evidence only to be told at the last minute that they are not needed. We know that that occurred in cases relating to a further 53 defendants in 2019. In his report, Sir John Gillen noted that:

"committal proceedings ... are often listed as mixed committal, which then turns into a conventional preliminary enquiry hearing on the morning of the matter, after the complainant has suffered the stress and worry of a court appearance, only to be told they are not required. This is quite unnecessary and that practice should be strongly deprecated, given the additional stress and delay this process is causing."

The trauma caused to victims and witnesses in those cases drives me to support the changes that are proposed in the Bill. Even one such case is too many.

One of the major reasons for bringing the Bill forward was to provide victims with the reassurance that they could not be called upon to provide oral evidence and potentially face cross-examination at a committal hearing. I have already cited the various expert reports and political agreements that call for that move.

Whilst much of the focus has been on rape and sexual assault cases due to the particular vulnerability of the witnesses who, in many cases, are also the alleged victim, there is also an issue with that in relation to terrorism. In addition to the three-person panel, the Chair of the Committee mentioned the Intelligence and Security Committee's (ISC's) report from October 2020 into Northern Ireland-related terrorism. There was no engagement with my Department in the drafting of that report, but, in the report, it is clear that security services were supportive of how the Bill could speed up direct committal because they recognised the positive impact it would have on dispensing with terrorist cases. I hope that Members consider that when they come to vote on these matters.

Voting for any one of Mr Allister's amendments will have a negative impact on victims and witnesses because the amendments do not provide reassurance that they will not be called to give evidence twice. Mr Allister's amendments would ensure that there is still an avenue through which victims might be called to provide oral evidence and face cross-examination in advance of their case reaching the Crown Court. For many people, including those giving evidence in terrorist trials and those who have been subjected to some heinous crimes, the thought of having to face the individual against whom they are giving evidence not once but at least twice in the process is sufficient for them to decide not to give evidence at all. We should be cognisant of balancing that concern against the lack of impact that the measure has on a fair and free trial for the defendant.

Besides the obvious impact on victims and witnesses, the preparation and process around arranging these committal hearings can add both a delay and a burden to an already stretched system. We know, for example, that the number of hearings for a preliminary investigation or mixed committal can be, on average, three to four times greater than those required for a preliminary inquiry that uses only written evidence. Therefore, if Members vote for any of Mr Allister's amendments today, not only are we failing to address the concerns of victims and witnesses about giving oral evidence more than once but we are losing a crucial opportunity to make the system more efficient for all users and members of the public.

Ms Bradley is, of course, correct: this alone will not suddenly speed up justice. However, it is a critical part of a wider programme of work to speed up justice. Ms Bradley and Miss Woods raised a number of issues that I will address specifically.

In relation to the funding of committal reform, the Department of Finance has previously approved a business case for £1·3 million for the capital costs that are associated with the IT changes that are required to implement direct committal. The main aim of direct committal is to transfer cases to the Crown Court more quickly than at present and therefore shorten the overall time that they take to complete. We anticipate that, in effect, there will be a rebalancing of resources: less work will be done in the lower court tier — the Magistrates' Court — and more will be done in the higher court tier — the Crown Court. It is also worth saying that, although the Crown Court is the more expensive tier, part of the benefit of direct committal is that the judge will have oversight of the case from the earliest point, which will allow certain efficiencies to be made in terms of court time, even in the upper tier. There is, overall, a benefit in taking that forward.

The Bill also seeks to allow all offences, in the case of an adult, that are triable only on indictment to be directly committed. We estimate that offences that are triable only on indictment are about 25% to 30% of those in the Crown Court caseload. That was about 370 cases during 2019-2020. We have over 300 offences in statute that meet the definition of an offence triable only on indictment. However, provisional data that is available to my Department indicates that the number of those offences used in recent years is much lower. That approach brings a wide variety of offence types within direct committal. However, in deciding on which offences should be included in the first phase roll-out of direct committal, we sought to strike the right balance between the number of cases that would give a meaningful evaluation and ensuring that the roll-out could be successfully managed, given the changes that it will bring to the criminal justice system.

The Department's intention over the medium to long term is to eradicate traditional committal processes entirely. The offence classifications that are outlined in the Bill will provide the basis for further roll-out. We will do that on a phased basis to avoid the bottleneck to which Ms Bradley and Rachel Woods made reference. Also, with respect to Rachel Woods's concern about monitoring progress, the Committee has a full role in that.

I have spent 20 years in politics, a significant number of those years in this House, and it pains me to say that it only recently became the case that the House has sat for as long as it has been suspended during my time in this place since 2003. For half of the time since 2003, the House has been suspended. If the Committee and Members want to have full scrutiny and oversight of what happens in the development of legislation, there can be no better way than making these institutions sustainable. That is how Members would have been able to talk to the Department about the balance of decisions that had to be taken between, on the one hand, the Executive's commitment to Fresh Start and, on the other hand, the desire of the House in 2015 to maintain some form of committal process.

Only a very small number of cases are halted at committal. The majority proceed to the Crown Court for trial. Again, using 2019 as an example, only 4% — 75 defendants — were not committed to the Crown Court. Furthermore, turning to the evidence that was provided by the Public Prosecution Service during the Committee Stage of the Bill, we find that PPS inquiries into those cases did not identify any case in which the undermining of oral evidence by cross-examination resulted in a case being dismissed. I will repeat that, because it is absolutely crucial to the votes on these amendments this afternoon.

At Committee Stage, the PPS evidence was that its inquiries into cases that were not committed to the Crown Court did not identify any case in which undermining the oral evidence by cross-examination resulted in a case being dismissed.

What of the defendants themselves, trying to navigate a complex process and often held on remand or subject to strict bail conditions for lengthy periods? A number of Members reflected that they want to hear more about that. The traditional committal process adds delay. Only in very few cases, regardless of whether oral evidence is called, does it have the purpose of filtering cases that should not proceed to the Crown Court. On balance, the rights of a defendant, as defined in the European Convention on Human Rights, to a fair trial are secured during the trial process and the procedures that surround it and are not diminished by the removal of oral evidence at a traditional committal hearing. In fact, the rationale of reducing delay will help to achieve a fair trial in a reasonable period, so, if you are an innocent defendant, that is absolutely in your best interests.

Therefore, I can find no strong argument for retaining the committal process in its entirety and definitely cannot find one for retaining an unnecessary and harmful aspect of the process, namely the calling of oral evidence, which appears to no longer serve a useful process. That process has long since been abandoned by comparable jurisdictions such as England and Wales.

The proposed new legislation in the Republic of Ireland is not the same as what was agreed in the Assembly in 2015, nor is it the same as the effect of the amendments that are being debated today. It allows for a pretrial hearing in the same court as where the evidence will eventually be heard. That is exactly what could happen with committal reform.

Mr Allister's amendments fall far short of the commitment given by my Department and the Executive to reform committal proceedings in line with Fresh Start and far short of the commitment given in NDNA by the five parties in the Executive. They also go against the decision of the Justice Committee, which scrutinised the legislation and opted not to amend it. For those reasons, I cannot support the amendments and call on the House to reject them. Support the inclusion of clauses 1 and 2 and paragraph 18 of schedule 1 to the Bill.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 4:45 pm, 23rd November 2021

I have heard it all when, today, I hear an amendment that has, at its heart, the protection of the interests of justice described as a "wrecking" amendment. Some people seem to have such disrespect for due process and the law that even the concept of innocent until proven guilty is an irritant and inconvenience. I really do wonder just how many in the Department of Justice and in the House have lost their way in terms of the basic concepts of justice, never mind democracy. The Minister patently glories in the fact that she and her Department know better than the House. The House dared to disagree with her predecessor and to propose and accept an amendment. The House dared to insert a change in the Bill, and it even dared to unanimously agree that change. Then, we have a Minister, a Department and the mandarins within it who think, "Don't worry about that. That was only ill-informed and ignorant MLAs. We know better; we have three wise men in Fresh Start who know so much better. We don't need to heed what 108 MLAs foolishly thought. Oh, no. We preen ourselves as those who know everything on these matters".

Photo of Naomi Long Naomi Long Alliance

On a point of order, Mr Deputy Speaker. Is it in order for the Member to castigate a Member who is not present? These decisions were taken during the time of my predecessor, Claire Sugden, and she is not in the Chamber to defend the decisions that she took.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

I do not believe that that is a point of order, but it is noted.

Photo of Naomi Long Naomi Long Alliance

Further to that point of order, Mr Deputy Speaker, there is a convention that, if a Member is going to criticise someone in the House, that Member should let that individual know in advance. Perhaps it would be helpful if we were to know whether Mr Allister has allowed Ms Sugden the opportunity to rebut some of what he has said?

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

That is not a point of order. It may be a convention as you see it, but we can get that clarified. Mr Allister will no doubt elucidate.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I will make it absolutely clear: the Minister whom I was criticising is the Minister in the House. It is the Minister in the House who stood up today and sought to justify overriding the view of the House and railroading her opinion and that of her Department and some other miscellaneous persons through the House. It is not Ms Sugden but Minister Long who has taken that stance, arrogantly and audaciously, in the House today.

There is a fundamental not just of justice but of democracy. The fundamental of democracy is that, if you have a legislative Assembly, you allow it to legislate, and, when it legislates, you heed what it says. We are now in the situation in which commencement delayed is the will of the House denied, and the Minister glories in that and thinks that that is great and is the right thing to do. Really, have we so lost our way democratically, never mind in law, that we think that that is the right course to pursue?

Photo of Naomi Long Naomi Long Alliance

I thank the Member for giving way. I will ask him two questions. First, will he point me to the clause in the Bill that changes the presumption of innocence until guilt is proven? Secondly, he may be aware of all the rules of democracy, but is he also aware of chronology and the fact that time moves on?

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Time moves on with a Minister who never thought it worthy to come to the House and say, "Remember, back in 2015, you very foolishly passed what became section 7 of the 2015 Act. I just want to tell you that I am not going to commence it". Never once did the Minister come to the House and reveal that secret. Such was the contempt for the House that she thought she could just sweep the House aside and never mind its will. It was the will of some people in the House who have today somersaulted. Sinn Féin spoke in favour and voted strongly to support the 2015 amendment. I remember Mr McCartney speaking about it. Today, it is shredded. Others, too, spoke in those terms.

I come back to this point: what is this alien thing that I am asking the House to embrace? This alien thing is to endorse the view that the interests of justice should determine whether evidence in a particular circumstance should be called. We now want to eschew the interests of justice, override the interests of justice and declare that we know better.

Ms Bradley told us that amendment No 1 is too wide. Are the interests of justice really too wide? Let us be very clear: what the amendment does is to decree that a magistrate — a judicial officer with many years experience — will be the one to decide, having regard to the nature of the charge and the nature of the witness, thereby protecting the frailty of a particular witness. The magistrate will decide whether it is in the interests of justice. Is that too wide? Are the interests of justice too wide? I really do say to the House —

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party

Does the Member recognise that the interests of justice also include making all participants in the justice system feel comfortable and at ease in order for them to be able to achieve justice? Does he recognise that any absence of effort to make every participant comfortable in giving evidence and being part of the procedure will lead to an injustice? That is why we are debating committal reform in the first place.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

A witness can feel uncomfortable and as though they are in a distant and foreign place when they give evidence, but I am afraid that the giving of evidence is at the very heart of the justice system. You cannot proceed to convict without evidence. Therefore, you have to hear it. Whether it happens in the Magistrates' Court, the Crown Court or both, it is unlikely to ever be the most comfortable of processes.

There is someone else to consider in the justice system: the citizen who is told that they are innocent until proven guilty also has rights. That person has the right to challenge evidence. That person has the right to question evidence. It is not a question of saying, "Here is a victim. We accept them as a victim, and we will cosset them to the point where we will prejudice the person whom we are calling the accused and diminish his or her rights in order to cosset others". The fundamental principle that a person is innocent until proven guilty has outworkings, and among the outworkings is the fact that that person is entitled to defend themselves.

Let us take a simple enough case where someone is accused of an act of theft, and they know that the primary witness is himself a person of ill repute, with a record the length of your arm, who would lie just for the sake of it, and they know that their statement is lies. The House is saying that that person should not have the right to persuade a magistrate to hear that person's evidence so as to bring the torture of their prosecution to an end. That is equally important in the justice system. Think of the 4% of cases. Think of the 18 cases in 2014 where, when the evidence was heard, the case was thrown out. Do the rights of those people not matter? Are they just to be trampled? Are they not to be acknowledged? Are they to be put through not just a committal but, ultimately, a trial before they are vindicated?

Photo of Jim Allister Jim Allister Traditional Unionist Voice

It is not just a one-way street: there are other players involved who have rights as well. When I say that all that we want to do is insert into the committal process a test as to whether there is sufficiency of evidence to return for trial, and to make that on the basis of whether it is in the interests of justice to hear that evidence, I do not think that that is too much to ask, but, to the Minister, it obviously is.

I will give way.

Photo of Naomi Long Naomi Long Alliance

I do not disagree with what the Member said about the need for the witness statements to be tested. That right is upheld during trial. The question is whether we need a preliminary process of inquiry that allows people to be cross-examined more than once. There is no purpose to that. In fact, the case would move much further and faster for the defendant were it to be remitted straight to the Crown Court, where that testing of the evidence could then take place in a single process. This is not to deny rights. The Member has asserted a number of times that we are ignoring the principle of being innocent until proven guilty. I ask him again to point to the clause in the Bill that does so.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 5:00 pm, 23rd November 2021

The criminal justice process is, or has been until now, a two-stage process: committal and trial. Both have to be fair under article 6 and both have to be compliant in that regard. For some people who are afforded the right to cross-examine witnesses at the committal stage, it will be the end of the process, because the magistrate may well decide, "This evidence is not believable. It is not credible. No one should go to trial on this. That is the end of it". In the Minister's view, however, that person should never have that opportunity. They should be compelled and forced to go to the full trial, wasting public money on trials that are not necessary because the evidence is so fallible that it will fall at first cross-examination. Why not have that first cross-examination where it is thought appropriate: at the first stage?

Photo of Naomi Long Naomi Long Alliance

I thank the Member for his generosity in giving way. I turn again to the original statement that I read out. I read it twice because it is so important. The cases of which he speaks were analysed by the PPS, and not one was thrown out because of the oral evidence being tested in the hearing. It would have been better if they had gone to the Crown Court more swiftly, because the oral evidence served no purpose: it was not the reason why the cases were thrown out.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

That was the assessment of the PPS — the people who have a vested interest in saying that the case was worthy in the first place. If the cases were not thrown out on the lack of value of the oral evidence, on what basis were they thrown out? How did they ever get there, with a PPS that has to be satisfied by a public interest test and the likelihood of conviction? How did those cases ever get into the system? Had it not been for the committal process, they would have stayed in the system to trial; they would not have been thrown out. Would that have been in the interests of justice? Was it in the interests of justice that those cases were thrown out at committal?

If the Minister says that it was not, she is saying that cases unworthy of trial should, nonetheless, go to trial. She is hoist by her own petard if she says that cases that the PPS evaluated were thrown out, but she would have had no committal. She would have had cases go to trial, at the expense of the public purse and everything else, that she and the PPS now say were unworthy, even though the PPS authorised them in the first place.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

At the risk of interrupting the discourse, I make the point that we do not want to veer off — I understand Mr Allister's points and the sequencing of his argument — into discussing cases outwith the debate that have been before the courts and thrown out. It is not that well-tuned-in people such as you will go in that direction, but I caution against it, in case it happens.

Photo of Naomi Long Naomi Long Alliance

I thank the Member for giving way. He raises an important point, but there are lots of reasons why a case may not be taken forward. New evidence could emerge that could be dealt with by the Crown Court. Mental health issues or, indeed, other health issues could intervene. Again, the Crown Court could deal with that matter. There is no question of this being about saying that people should be found guilty if they are not guilty. It is simply about saying that the issue of a pretrial hearing causes significant challenge in the delivery of justice and the speed of delivery of justice. The serving of justice is not in any way diminished by the fact that the cases will go straight to the Crown Court.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Minister has not explained how, under her preferred system of no committals, she would deal with the 100 or so cases of 2019 that fell apart and did not proceed. Those cases would have had to proceed.

Of course, by removing committal, you also remove something that we have not yet discussed: the early stages of disclosure. More often than not, it is the compulsion of disclosure that demonstrates the inherent flaws in a case that can cause it to collapse. The Minister does not want that at an early stage. She wants to keep the person charged until the last moment, when the jury delivers its verdict, whereas there are cases where justice requires that the evidence is so flawed that it should be exposed as flawed and the person released forthwith. Those are the cases where, if there is an application to hear the evidence, in the interest of justice, there is nothing to lose in allowing committal proceedings.

This is not a grand demand for carte blanche on committal cases. This is very much the bare bones of the 2015 compromise that said, subject to the filter of a magistrate, an experienced person, who, having regard to the nature of the witness and the charge, has to decide whether or not it is in the interest of justice to hear evidence. It is a minuscule but important number of cases.

It staggers me that so many MLAs in the House are so anxious to run away from a test of something being in the interest of justice. What are you scared of in subjecting something to the interest of justice test? Should that not be at the heart of everything? Yet, that is what drove an arrogant Department to decree, "We will ignore what the Assembly says", and it is what drives the Assembly today to say, "We will ignore the opportunity to put it right. We will just bulldoze with that which we have because we do not really care about the interests of justice".

Question put, That amendment No 1 be made.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Clear the Lobbies. The Question will be put again in three minutes. I remind Members, particularly given the current health situation in the community, that we should continue to uphold social distancing and that Members who have proxy voting arrangements in place should not come to the Chamber.

Question put a second time.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Before the Assembly divides, I remind Members that, as per Standing Order 112, the Assembly has proxy voting arrangements in place for some Members. Members who have authorised another Member to vote on their behalf are not entitled to vote in person and should not enter the Lobbies. Again, I remind all Members of the requirements for social distancing while the Division takes place, especially with the rise in infection in the wider community. I ask you to ensure that you maintain at least a 2-metre gap between yourselves and others when moving around the Chamber, the Rotunda and especially in the Lobbies. Please be patient at all times, observe the signage and follow the instructions of the Lobby Clerks.

The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 30; Noes 54

AYES

Mr Allister, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mrs Cameron, Mr Carroll, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Easton, Mrs Erskine, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Newton, Mr Poots, Mr Robinson, Mr Stalford, Mr Storey, Mr Weir, Mr Wells

Tellers for the Ayes: Mr Allister, Mr Weir

NOES

Dr Aiken, Mr Allen, Dr Archibald, Ms Armstrong, Ms Bailey, Mrs Barton, Mr Beattie, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Butler, Mr Catney, Mr Chambers, Mr Delargy, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Ferguson, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lyttle, Mr McAleer, Mr McCrossan, Mr McGrath, Mr McGuigan, Mr McHugh, Mr McNulty, Ms Mallon, Mr Muir, Ms Á Murphy, Mr C Murphy, Mr Nesbitt, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Miss Reilly, Ms Rogan, Mr Sheehan, Ms Sheerin, Mr Stewart, Mr Swann, Miss Woods

Tellers for the Noes: Ms Bradshaw, Ms Dolan

Question accordingly negatived.

Amendment No 2 proposed:

In page 1, line 5, after &quot;accordingly&quot; insert-

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&quot;save in so far as is necessary to give effect to Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981&quot;. — [Mr Allister.]

Question, That amendment No 2 be made, put and negatived.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Before I put the Questions on clauses 1 and 2, I remind Members that we have debated Mr Allister's opposition that the clauses stand part. The Questions will be put in the positive as usual.

Clause 1 ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Clause 4 (Direct committal for trial: miscellaneous amendments)

Amendment No 3 proposed:

In clause 4, page 5, line 43, leave out from &quot;for&quot; to end of line 44 and insert-

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&quot;for the word &#x0027;documents&#x0027; substitute &#x0027;copy of the notice of committal&#x0027;&quot;. — [Mrs Long (The Minister of Justice).]

Question, That amendment No 3 be made, put and agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

No amendments have been tabled to clauses 5 and 6. I propose, by leave of the Assembly, to group these clauses for the Question on stand part.

Clauses 5 to 6 ordered to stand part of the Bill.

Schedule (Amendments and repeals: Abolition of preliminary investigations and mixed committals)

Amendment No 4 proposed:

In page 9, line 13, leave out paragraph 18. — [Mr Allister.]

Question put and negatived.

Schedule agreed to.

Long title agreed to.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

That concludes the Consideration Stage of the Criminal Justice (Committal Reform) Bill. The Bill stands referred to the Speaker. Thank you for your time and input.

Members, please take your ease before we move on to the next item of business.