Reform on the road to peace

A review of the criminal justice system in Northern Ireland is central to a lasting peace settlement, reports Fiona Doherty. Fiona Doherty is a barrister.

The recent history of Northern Ireland has spawned a legacy of distrust and injustice on all sides. In this context there can be no more urgent mission than the review and reform of current legal and political structures.

The “Good Friday” agreement reached at the multi-party talks has the potential to contribute to a new culture of respect, equality and transparency in government.

The agreement proposes a number of commissions to review various key areas. These include a commission to review policing, a Northern Ireland Human Rights Commission, an Equality Commission, a commission on prisoners and a commission to review the criminal justice system.

The potential for change in criminal justice is dependent on the outcome of a “wide-ranging review” which is to be carried out by the British government through “a mechanism with an independent element”. A consultation process will involve political parties and “others, including non-government expert organisations” and is to be completed by autumn 1999. Responsibility for this area may eventually be devolved to the proposed Northern Ireland Assembly.

A review of criminal justice is seen as central to creating a peaceful society. Of the proposed commissions, the body that will deal with criminal justice is potentially crucial. Unfortunately it could also be the weakest. The composition of the review body, including the vital “independent element”, has yet to be announced.

The agreement is short on detail beyond this and the body's terms of reference which address the structure, management and resourcing of the publicity funded elements of the criminal justice system.

In addition, there are a number of variables which will be crucial to success. These are: the composition of the review body; who it consults; the body's approach to its task; and the attitude of the Government when the review is completed.

It should be noted that the guiding principles of criminal justice have remained largely unarticulated since the founding of the state in 1920.

It is perhaps in light of this that an attempt is made in the agreement to define its aims. These are: to deliver a fair and impartial system of justice to the community; to be responsive to the concerns of the community and to encourage involvement where appropriate; to have the confidence of all parts of the community; and to deliver justice efficiently and effectively.

Given that no system of criminal justice operates in a vacuum it is not surprising that in parts of Northern Ireland there is a widespread feeling of distrust and little confidence in the entire process, from investigation to prosecution.

For many years the “ordinary” criminal justice system has been overlaid with repressive emergency laws whose operation has been criticised in many international fora. The resulting damage to the system as a whole cannot be quantified.

A number of provisions which were initially confined to those cases which fell to be dealt with under the emergency legislation have now been extended to “ordinary” criminal cases. Thus review and change is urgently needed to provide a stable system free from perceived political influence.

The areas to be examined are: the system of appointments to the judiciary and magistracy and safeguards for protecting their independence; arrangements for the organisation and supervision of the prosecution process; lay participation in the system; mechanisms for addressing law reform; and North/South co-operation on these issues.

Other areas of the agreement which will affect criminal justice include the commissions mentioned above and plans already under way to incorporate the European Convention on Human Rights. Further legislative provision will be made for other guaranteed rights to supplement those contained in the Human Rights Bill – particularly in the field of discrimination – which would form the basis of a version of the long campaigned for Bill of Rights for Northern Ireland.

There is a tremendous pool of knowledge on these issues locally and internationally. It would seem logical that the body and the Government, when it comes to consider legislative change, draw on existing international principles which have been drafted with rights issues in mind.

International experience is also of value. A recent visitor to Belfast, Judge Albie Sachs of the South African Constitutional Court, spoke of the all-encompassing process of change that has taken place in South Africa and the importance of change to the judiciary as part of that process.

The proposed review of the criminal justice system is, when compared to what has come before, a potentially radical step. However, it is impossible at this stage to predict what the implications of the agreement actually are.

The review cannot be examined in isolation but as a small part of a huge task and, it is hoped, part of a new, open and peaceful Northern Ireland.