Mr David Ford MLA

Mr David Ford MLA

Minister of Justice

Department of Justice
Block B
Castle Buildings
Stormont Estate
Belfast
Northern Ireland
BT4 3SG

27th April 2012

Dear Minister,

As you are aware, the Northern Ireland Human Rights Commission pursuant to Section 69(3) of the Northern Ireland Act 1998 advises the Executive of measures which ought to be taken to protect human rights. In accordance with this function I am writing to you with comments on the Department of Justice consultation concerning ‘Encouraging Earlier Guilty Pleas’ and make reference to the international human rights treaties to which the United Kingdom (‘UK’)is obligated throughratification and accompanying standards.

First, I notethat while a duty of ongoing disclosure already exists on the Public Prosecution Service (‘PPS’), the consultation suggests in Option Twothat an earlier engagement could occur between the PPS and the defence. The consultation states in paragraph 4.20that ‘prosecutors would identify suitable cases within a fixed period of the charge, and approach defence representatives with a summary of the case, highlighting the strength of the case against the accused’ [emphasis added]. The implication is that only where the prosecution believes it has enough evidence to secure an early guilty plea will the accused be given an early summary of the case.

Under Article 14 of the United Nations (‘UN’) International Covenant on Civil and Political Rights, all persons are deemed equal before the courts. The UN Human Rights Committee in General Comment No. 32 makes clear that incorporated within this right is the concept of equal access to first instance procedures. In order to ensure that this obligation is not infringed, I advise that any Option Two reform should adhere to the principle of parity of access by affording to all defendants,irrespective of the strength of the prosecution case, the earliest possible opportunity to view the case against them.

Secondly, both Options Two and Three of the consultation suggest that the level of credit awarded for an early guilty plea could be fixed in statute.

The UN has supported a human rights-based approach for governance concerning generic programmes and initiatives including access to justice and to this end draws on the human rights as found in the treaties ratified by the UK in order to highlight the need to respect, among others, the principle of transparency. I advise and agree with the observation of the consultation that placing the level of credit to be awarded for an early guilty plea into statutory terms that specify a fixed range within which a judge can exercise discretion allows for greater transparency than the current procedures which rely upon case law and judicial discretion.

Furthermore, it is entrenched in the wording of Article 5 of the European Convention on Human Rights that any interference with the liberty of the person should adhere to the principle of legal certainty. Legal certainty requires that the law should be sufficiently precise, foreseeable and accessible. A statutory determination of credit will facilitate legal certainty in a manner superior to the current procedures.

Finally, I welcome the objective of the consultation to reduce the burden upon victims caused by delay, an intention shared by the concurrent consultation on ‘Reform of Committal Proceedings’. This is in keeping with the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which makes clear that prompt redress for victims is a component of access to justice and states that judicial and administrative processes must be responsive to the needs of victims by avoiding unnecessary delay in the disposition of cases.

If you require any further information, please do not hesitate to contact me here at the Commission.

Yours sincerely,

Professor Michael O’Flaherty

Chief Commissioner