The final part of the interview of Sir Declan Morgan by Ben Lowry, in which he talks about confidence in justice, the current dissident threat and the Gillen review on the handling of sex cases:
In the first part of this interview, published on Saturday (and now on our website, see links beneath this article) we asked the Lord Chief Justice if he had any recollection of the nationalist community lacking faith in the criminal justice system when growing up in the 1960s.
Sir Declan Morgan, who grew up in Londonderry and was 16 as the Troubles erupted, said that his recollection was more one of a lack of engagement among the Catholic community.
There are now concerns that, for various reasons, the state and its security forces are far more vulnerable to legacy structures than paramilitaries. Those fears, widely shared by unionists, have formed the basis of our questions to Sir Declan.
Does he, we ask, have any concerns one section of the community might come to have a negative perception about criminal justice?
“I think that would be enormously difficult. It is absolutely critical to the proper functioning of this society that the people of this community are confident that they have an independent and impartial judiciary.”
What then about the current terror threat? This newspaper has highlighted examples of extremely generous bail policy towards people on grave terror charges, as well as light sentences for some people found guilty of such.
“On bail, I have since at least 2012 been hounding the Department of Justice to change the law in Northern Ireland in relation to the committal system. The committal system effectively keeps cases in the magistrates court which is a robust case of summary justice. These cases, as in England, should be transferred within days to the crown courts so that they can be effectively managed by it.
“What is happening is that there is an interest on the part of those who are accused to keep the cases in the magistrates court for as long as possible, raising issues – I’m sure quite proper issues – around experts etc, but because legal aid for counsel doesn’t arise until you’re out of the magistrates court, directions as to how you get on with the case come at a very late stage. The European Court of Human Rights says if you’re not convicted there are serious questions over whether you can hold anybody for more than two years, on suspicion.”
[scroll all the way down for links to the earlier parts of this interview]
On sentencing, Sir Declan says: “I have pointed out on numerous occasions that where the prosecution is dissatisfied with the outcome of the sentence, there is in many cases an opportunity to seek to have the sentence reviewed in the Court of Appeal.”
He adds: “We have guidelines now on terrorist cases which are absolutely clear. We reinforced recently in cases of attempted murder, particularly involving a firearm, that the starting point was 25 years. Our tariffs have reached 30 years in a number of cases.”
Finally, we ask Sir Declan about recusal. A judge recently recused himself under pressure over a past case he said he could not remember. Aware that a Lord Chief Justice cannot speak about any live case, what about the principle? NI is a small place where barristers take a lot of work before joining the bench.
“I have on occasions recused myself because I have represented a lay client, particularly in one circumstance where the client was representing himself and I was concerned he would feel that he wasn’t likely to get a fair hearing, but I’ve had many cases where I’ve represented government interests, but there’s never been any difficulty both as a puisne judge and in the Court of Appeal. Recusal tends to be examined on a case by case basis.
“There are times when you just don’t remember cases that you’ve done and in particular you mightn’t remember some of the documents that you saw, and then it suddenly becomes apparent that yes, there was a document.”
He adds: “I remember in one case in the Court of Appeal a lay client produced a letter that I had written probably 20 years earlier which expressed some view about the prospects of success of his case. I’d absolutely no recollection of the issue at all, but I obviously had to recuse myself forthwith. It’s not an every day occurrence, but it’s not unusual to find that one recuses oneself. It’s very much a factual situation that arises in each case and if one has to recuse oneself in a controversial case obviously that attracts more publicity.
“But if you’ve got somebody for instance who has been working, particularly for the government, as senior crown counsel or something of that kind, there is so much going on that it’s hardly unusual that you might fail to remember that there was something going on that was of some materiality.”
• A lot of very good work in Gillen review, says Sir Declan
This interview is primarily on legacy, but given that Sir John Gillen’s review into procedures around sex cases is recently out, we ask Sir Declan about it.
“I think there is a lot of very, very good work in there,” he says. “There are ways in which we feel that we can ensure that our systems try to speed up the process so as protect children as a first priority, but also complainants and those who are complained about. I think that those cases need to be sorted out as quickly as they can be.”
He says it is “not entirely surprising” that there is a low conviction rate in sex cases because there is often a lack of corroborating evidence one way or the other. But has the drive to push up convictions, or at least prosecutions, in Great Britain not put at risk the rights of those who face charges?
“I think it’s very important that none of this imperils the right to a fair trial. John’s proposal where there is anonymity pre-charge is important. I understand why he’s taking the view that it shouldn’t be post-charge because there is quite a number of cases where people have come forward as a result, but I do think it’s clear from everybody’s point of view, both the complainant and the defendant, that getting those cases into court and dealt with as quickly as possible is extremely important.”
Sir Declan confirms that under Sir John’s proposals, Cliff Richard’s home could not have been filmed as it was raided because he had not been charged.
• For the first part of the interview with Sir Declan, ‘Inquiries were not the only way to handle legacy,’ click here and for an accompanying article where Sir Declan Morgan speaks about his early years, ‘Catholics did not so much lack faith in justice as lack engagement’, click here
• For the second part of the interview, ‘I recognise that many people see legacy as unfair’, click here