JUST NEWS SEPTEMBER 2000 ISSUE
CAJ's response to the report of the Criminal Justice Review
CAJ made a lengthy submission to the Criminal Justice Review in October 1998. We also made two further submissions on specific cases and their consequences. In addition we met with the Review for a more detailed discussion of our proposals. We also organised, in conjunction with the International Commission of Jurists, a seminar for members of the Review which was hosted by the Human Rights Centre at Queen's University Belfast.
While we have criticisms of the report of the Review, and particularly its refusal to engage with the issue of emergency laws, generally CAJ welcomed the report and particularly its reliance on human rights principles.
However, we are concerned, in light of what has happened to the recommendations of the Patten report (see page 2), that the elements of the Criminal Justice Review's Report which hold out the promise of real change will be subject to dilution before they are implemented by way of legislation or otherwise. The experience of Patten suggests that the changes recommended by the Review will be the ceiling rather than the floor of the process of change to the criminal justice system in Northern Ireland.
Implementation
In this context we are disappointed that the implementation of the report's recommendations have been left solely in the hands of the civil service. The absence of any independent element in the implementation of the report makes its recommendations all the more vulnerable to dilution and to the opposition of elements within the existing criminal justice system which are firmly opposed to some of the more far-reaching changes suggested.
...........The absence of any independent element in the implementation of the report makes its recommendations all the more vulnerable to dilution.....
This is all the more unsatisfactory given that the Review was government led and that the recommendations of the Review were subject to comment by relevant government departments and others in advance of publication. Indeed we understand it was this process that led to much of the delay in the publication of the Review.
In light of this we believe that any dilution of the final recommendations of the Review on the part of government would be unacceptable. We also believe that the dangers posed to the Review by virtue of the fact that their implementation is solely in the hands of the government means that those responding to the Review should make it clear that a mechanism should be put in place to maintain an independent input into the implementation process. We believe that the presence of an independent element will act as a safeguard for the recommendations of the Review.
Court services
On the substantive issues, CAJ is concerned that the terms of reference
of the Review may have discouraged any reflection on the past record of
judges in Northern Ireland with regard to the protection of human rights
(though it is also notable that the Review does not seem to report receiving
many views on this in the consultation process). CAJ is concerned that,
although Northern Ireland's courts have given a number of decisions upholding
human rights, their overall record in the past thirty years demonstrates
excessive deference to the interests of the executive. In cases involving
inquests, emergency laws (notably in respect of confessions and access to
defence lawyers) and the use of lethal force by the security forces, we
are concerned that courts have failed to give sufficient weight to human
rights arguments. As has been noted by leading academics, Northern Irish
courts have overall adopted a restrictive approach to arguments invoking
the ECHR, something which bodes ill for the introduction of the Human Rights
Act.1 Equally we believe this approach bodes ill for the approach of the
judiciary to the new Bill of Rights. Given this record, and the centrality
of human rights to the new dispensation in Northern Ireland, we believe
it is imprudent to leave the current judiciary sole responsibility for interpreting
the new Human Rights Act, Bill of Rights and other protections. It is therefore
our firm view that a new Constitutional Court needs to be established to
deal with cases involving these issues and give guidance to the existing
judiciary on the protection of rights. |
