A heartfelt apology from the British Prime Minister heralded the long awaited arrival of the Saville Report into the events of 30 January 1972: Bloody Sunday.

“I never want to call into question the behaviour of our soldiers and our army who I believe are the finest in the world,” David Cameron said. “But the conclusions of this report are absolutely clear … What happened on Bloody Sunday was both unjustified and unjustifiable.”

The report, which concluded that those who were killed and injured in Derry were innocent, and that the soldiers fired the first shots and put forward false accounts of their actions, was largely accepted across Northern Ireland.

However, a number of unionists criticised it for costing almost £200 million and taking 12 years to complete in light of no similar inquiries being carried out into other atrocities.

Objectivity

Tony Blair announced the Saville inquiry in 1998. Lord Widgery claimed that shots had been fired at the soldiers before they started firing.

The Widgery report had been released 11 weeks after Bloody Sunday and was criticised as being a “white-wash”. Following Cameron’s apology, a copy of that report was torn in two on the steps of the Guildhall in Derry by the families of the 14 men who were killed.

During the Saville inquiry, 2,500 people were interviewed or gave statements. Oral evidence was given by 505 civilians, 245 military witnesses, 49 media representatives (including photographers), 39 politicians and civil servants (including intelligence officers), 35 paramilitaries or former paramilitaries, 33 RUC officers, nine experts and forensic scientists, and seven priests. It ran to 5,000 pages and cost £190.3 million to the end of February 2010. It is estimated that legal fees will account for a further £10 million.

First Minister Peter Robinson accepted the report’s findings that what happened was wrong and unjustified. “After the length of time, the detail that is provided in that report, I think you cannot pick and choose the elements of that report that you accept and those that you do not,” he said.

Martin McGuinness told the BBC’s Spotlight programme: “To see a British law lord and a Tory Prime Minister point a finger at the British army is a momentous day for the families and people of Derry.”

Leadership

Denis Bradley, the former priest who administered last rights on the day, wrote in the Irish News: “I have never been a supporter [of David Cameron] but, if he was in the room, I would want to shake his hand and compliment him for the leadership he is taking. Saville probably left him with no choice but when a politician speaks words that are healing and reconciling, that needs to be acknowledged.”

Dr Edward Daly, the retired Bishop of Derry who appeared in an iconic photo from that day waving a bloodied handkerchief while helping to carry a body, said: “I feel an enormous relief that this burden has been lifted off my shoulders and off the shoulders of the people of Derry. It’s wonderful when the truth emerges, when people whose characters have been sullied are vindicated.”

The day after the report was released, three senior Protestant church leaders met with members of the families: Bishop of Derry and Raphoe Ken Good, Presbyterian Moderator Rev Norman Hamilton, and Methodist President Rev Paul Kingston.

Following their meeting they stated: “A cloud that has been hanging over this city for almost four decades has begun to lift. Our hope is that the Saville report will bring comfort and relief to the families who lost loved ones as a result of that fateful day. We believe that the report presents a challenge and an opportunity for new and closer relationships within our wider community. We wish to contribute to and to feel part of a self-confident, welcoming city that is at peace with itself.”

MPs immediately reacted to Cameron’s statement in the Commons.

Mark Durkan asked if the Widgery report could be discredited in light of Saville’s findings. He added: “If today, as I sincerely hope it does, offers a healing of history in Derry and Ireland, may we pray that it also speaks hope to those in other parts of the world who are burdened by injustice, conflict and the transgressions of unaccountable power.”

Cameron responded: “the Widgery report is now fully superseded by the Saville report; this is the report with the facts, the details and the full explanation of what happened, and it should be accepted as such.”

East Londonderry MP Gregory Campbell told the Commons: “There have been 10,000 other bloody days in Northern Ireland’s recent history. They have had no costly inquiries and no media interest.”

He asked Cameron if he agreed that “the sorry saga of the report is finally over and done with, and that we should look forward, rather than looking back?”

Cameron responded: “Let us not pretend that there is not something about that day that needed to be answered clearly in a way that can allow those families to lay to rest what happened.”

Martin McGuinness, who the report says, “was possibly” carrying a gun on Bloody Sunday told the Spotlight programme:

“I didn’t have a gun. There are photos of me on the march without a gun. These allegations came from a highly suspect source to the tribunal. It is absolutely untrue.”

The UUP’s Reg Empey pointed out that 1972 was the “bloodiest” year of the Troubles with 496 people killed. He criticised how Saville addresses “one set” of victims, while ignoring others and added: “any attempt by republicans to use Bloody Sunday to retrospectively justify three decades of terrorism is a perversion of history.”

The inquiry had left many people asking whether “38 years after the events of that confusing day in January 1972, the public interest is served in prosecuting soldiers but not the godfathers of terrorism?” Empey concluded that there should be “no more Savilles”.

Alliance’s Stephen Farry claimed: “It was right that Bloody Sunday was properly investigated and the rogue conclusions of Widgery consigned to the dustbin of history.”

He believes that Saville “closes one chapter” but also raises questions about prosecutions. Any prosecutions will be considered independently by the Public Prosecution Service. Farry also called for the Government to clarify how the past could be dealt with in a way that builds a shared future.

Brian Cowen praised the “brave and honest words of David Cameron which will echo around the world” and John Hume stated: “The people of Derry have always known that everyone shot on Bloody Sunday was entirely innocent. With the publication of the Saville Report, the British state has acknowledged their innocence and that its army murdered on that day.”

Nearly 150 immigration cases have been taken up by elected MLAs in the last two years but UK Border Agency officials still close the door on their queries. As previously reported by agendaNi and now substantiated by a freedom of information request, Assembly representatives must pass on all immigration cases to an MP.

The information shows that MLAs’ enquiries to the agency must first go through an MP or UK Government Minister before they are dealt with by the agency.

Correspondence is recorded in three ways:

· Written correspondence sent directly to a Minister or MP, or to the MPs’ Liaison Unit in UKBA’s Croydon office;

· Telephone enquiries made to the MPs’ enquiry line; and

· Email correspondence sent to the central MPs’ enquiry inbox.

Varying from visa problems to asylum cases, MLAs’ enquiries cover a broad range of queries. The MPs’ Liaison Unit co-ordinates all written contact between the agency and elected representatives, and this is where the agency receives the vast majority of its enquiries (see figure 1).

Only MPs’ details for telephone enquiries are recorded but these account for the vast bulk of calls anyway (see figure 2). Since July 2009 the telephone enquiry line has only accepted queries from MPs and so does not answer those put forward by members of devolved legislatures.

Phone queries from MLAs on general policy or for information which is not related to a specific case will still be answered, agendaNi understands.

The inbox (see figure 3) proved the least used facility. A total of 2,366 emails were received from MPs in 2008, with no other representatives choosing that route. The following year saw the figure increase to 3,097. MLAs sent four enquires.

South Belfast Alliance MLA Anna Lo described the situation as “very frustrating” and said: “It is obviously very awkward if we want to represent members of our constituency.” MLAs without a dual mandate therefore have to rely on a “sympathetic” MP take up a constituent’s cause, which Alasdair McDonnell has been open to doing.

Alliance, though, was reluctant to pass cases on to the SDLP for party-political reasons as it believes that applicants may have consciously stayed clear of the unionist or nationalist parties. Lo’s office has dealt with 85 cases directly related to immigration in the last 18 months.

An applicant does not have to be resident in an MLA’s constituency to have their case taken up. Anna Lo has taken cases from outside South Belfast and can now pass these on to new her party’s East Belfast MP, Naomi Long, rather than McDonnell.

Party leader David Ford has written to the Secretary of State to highlight the problem but agendaNi understands that to date the response has been non-committal.

We also understand that before the election there were informal discussions which could have led to a compromise being reached, whereby the agency could be opened up temporarily to devolved legislature members. That, though, has not been pursued by the new coalition so far.

A Home Office spokeswoman told agendaNi that the Government will be seeking views in due course and added: “Immigration is a reserved matter and constituents can continue to make representations through their elected Westminster MP.”

Figure 1

Figure 2

Figure 3

Police
An Garda Síochána

Founded by Michael Collins as an unarmed force in 1922, following the disbandment of the Royal Irish Constabulary, the Garda became a national force when the Dublin Metropolitan Police merged with it in 1925. It is responsible for the Republic’s national security as well as the traditional crime investigation, public order and road safety duties. The Commissioner handles the day-to- day management of the force, while the Justice Minister is accountable to the Government and Oireachtas for its overall performance. Complaints can be submitted to the Garda Síochána Ombudsman Commission.

Garda Commissioner: Fachtna Murphy

Gardaí: 14,500

Website: www.garda.ie

Ombudsman Commissioners: Dermot Gallagher, Carmel Foley, Conor Brady

Website: www.gardaombudsman.ie

Office of the Director of Public Prosecutions
Oifig an Stiúrthóra Ionchúiseamh Poiblí

Most crimes and offences are prosecuted in the name of the people of Ireland. The office was established by the Prosecution of Offences Act 1974 and makes decisions independently of all other organizations, including the Government and Garda. Minor prosecutions are carried out by gardaí. The Directing Division decides whether or not to take a prosecution. Approved cases and then prepared or conducted by the Solicitors Division, for Dublin hearings, and ‘local state solicitors’ outside the city.

Director: James Hamilton

Chief Prosecution Solicitor: Eileen Creedon

Legal staff: 104

Website: www.dppireland.ie

Department of Justice and Law Reform
An Roinn Dlí agus Cirt agus Athchóiri the Dlí

The Republic’s justice department and its agencies cover the criminal justice system, tribunals and immigration. In June 2010, equality policy was transferred from its remit to the Department of Community, Equality and Gaeltacht Affairs; this includes the integration of immigrants. Current minister Dermot Ahern is a TD for the border constituency of Louth and previously served as Foreign Affairs Minister (2004-2008).

Minister: Dermot Ahern TD (Fianna Fáil)

Minister of State: Barry Andrews TD (Fianna Fáil)

Secretary-General: Seán Aylward

Courts Service An tSeirbhís Chúirteanna

Originating in English common law, modern Irish law operates within the framework of the Constitution of Ireland (Bunreacht na hÉireann). Dáil courts were set up during the War of Independence and the Courts of Justice Act 1924 established the current system.

District courts hear minor criminal cases. Circuit courts cover specific regions and hold jury trials. Murder, rape and other serious crime cases are heard by the Central Criminal Court. Terrorism falls within the Special Criminal Court’s remit. The Court of Criminal Appeal hears appeals from the circuit, central and special courts. The Supreme Court is the court of final appeal whose decision, the constitution states, “shall in all cases be final and conclusive.”

Chief Justice: Mr Justice John L Murray

Judges: 148

Chief Executive: Brendan Ryan

Website: www.courts.ie

Probation Service
An tSeirbhís Phromhaidh

Brehon law, before the Norman invasion, emphasised the local management of offenders in families or communities and common law allowed for offenders to be ‘bound over’ to keep the peace. Modern probation officers emerged in the 19th century and were formally recognised by the Probation of Offenders Act 1907. The current service was established in 1962.

Director: Michael Donnellan

Probation officers: 282

Irish Prison Service
An SeirbhÍs Phríosúin na hÉireann

The Republic has 14 prisons i.e. 11 of the traditional form, two open prisons and a training unit to help prisoners return to work. Regular inspections are carried out by the Inspector of Prisons (An Chigire Príosún). The island’s first regular prison service was the Convict Prisons Board, founded in 1854; it was succeeded by General Prisons Board (1877-1928), direct control by the Department of Justice (1928-1999) and the present-day service (from 1999). Mountjoy is the state’s largest prison (590 places) while Portlaoise (399 places) houses paramilitary convicts.

Director-General: Brian Purcell

Prison officers: 3,177

Prisoners: 4,274

Website: www.irishprisons.ie

Inspector: Judge Michael Reilly

Website: www.inspectorofprisons.gov.ie

Attorney-General
An Ard-Aighne

The Attorney-General is constitutionally “the adviser of the Government in matters of law and legal opinion”. He is assisted by five groups of ‘advisory counsel’, of which Group A specialises in criminal law. In addition, ‘parliamentary counsel’ draft legislation on behalf of ministers and ‘state solicitors’ represent the state in civil cases. His office also publishes an electronic Irish Statute Book: www.irishstatutebook.ie

Attorney General: Paul Gallagher SC

Website: www.attorneygeneral.ie

In discussion with agendaNi, Arthur Cox’s Alan Taylor and Peter Curran survey the changing legal services environment, including the rising demand for specialisation and commercial knowledge.

Please describe your current roles.

AT: My role as Managing Partner is to use the specialisation that Arthur Cox has across its more than 400 professional staff to ensure that we are able to bring to the local market the strength and depth of expertise necessary to service the demand for top quality legal input.

Arthur Cox brings experience and knowledge gained from advising both the public sector and the private sector at the highest levels, on decisions of importance for the whole economy. My role is to ensure that this expertise is harnessed in the most efficient way for the benefit of our clients.

PC: I worked with Arthur Cox in Dublin up until 2008 and am now based in Belfast where I head up the Projects and Procurement Group. This team is focussed principally on public sector and utilities work. We generally advise public bodies and utilities on their procurement of projects and contracts as well as the private sector contractors who compete for this work. We work across a range of sectors including waste, transport, urban regeneration, housing, health, education, energy, telecoms and IT.

What is the biggest challenge facing Arthur Cox at present?

AT: The biggest challenge for us in the current economic climate is to maintain our market-leading position. The economic downturn and recession has adjusted a lot of markets and one of the challenges is to maintain that link that we have with the client, to be very much part of the client’s team and to have the support available for the clients in the difficult environment. Not everyone can do that but we’ve been doing it very well. Arthur Cox has grown, but it’s always a challenge maintaining that position.

PC: We have ramped up our teams significantly over the last two or three years to match our clients’ needs and we have raised our profile such that we are now recognised as the leading firm advising on public sector work across all of the key sectors. We find that more and more our clients expect deep knowledge of the sectors in which they are active and we work hard at maintaining that level of specialism in all relevant areas in order to provide the level of service that clients now demand.

Obviously the difficult economic environment presents a challenge for everybody in business today. We adapt our practice regularly to match developments in the market and in these uncertain times this is something that we have to keep under constant review.

The Projects and Procurement Group has been one of the busiest areas of the firm over the last couple of years despite the economic conditions. We haven’t seen the full effect of public sector cuts affect our workload so far; the challenge will be to deal with that situation if and when it arises.

How have your clients been impacted by the current economic downturn?

AT: I think it’s very varied across each of the sectors but a lot of our clients have done very well, partly because the sectors they are in are not particularly hit by the recession and they’re quite constant. The agri-food sector, for example, continues to be quite robust. Larger scale corporate client work has slowed over recent years although there are now lot of reorganisations taking place. Property is still a very difficult sector.

Because we’re acting for a lot of the bigger, well-known brand names, they continue to do quite well and have a global business which, in the current environment, enables them to reduce their exposure to the worst of the downturn.

There are winners and there are losers in the recession and I suppose the key is really to use the knowledge we’ve acquired over a period of time and the specialisation we have acquired to help both in whatever issue they face or whatever opportunity they face. That is particularly evident whenever the business failures come and you can actually help in a way that turns something around by restructuring in a certain way or providing a solution.

Looking back, what has been the big change in legal services in 2010 as opposed to 10-20 years ago and what will be the biggest challenge over the coming decade?

PC: I think clients are more demanding now and expect you to be available virtually 24/7. New technology and communications have made us much more accessible and mobile. Clients also now expect a level of specialism that simply was not available in this market a few years ago and they expect local advisors to provide that. They don’t necessarily want to go to London anymore to get the advice. Clients now appreciate that there are locally based lawyers who fully understand the industries and sectors that they are working within. As a result, they are increasingly willing to give lawyers a more hands-on role.

AT: I think we’re being asked for more commercial advice in conjunction with our legal advice. There’s much more of a commercial view as to ‘how do we do something?’ as opposed to ‘can you now document it?’

PC: I think that’s because they appreciate that we understand the sectors. Take waste: we understand how the sector works, not only from a legal perspective but also from a commercial perspective. That’s what they want and that’s what they expect. They don’t want a purely legal view anymore; you have to appreciate the commercial aspects.

AT: Probably the biggest shift over the last 20 years has been the clients’ ‘flight towards quality’ because the cost of a mistake, or not making the right decision now, is not as easily covered as it was, because margins are tighter.

It’s a much more difficult global trading environment, it’s much more competitive and I think over the next 20 years there’s much more movement towards going to somebody who actually does know the answer.

PC: Obviously the private sector in Northern Ireland has to grow and it has to look beyond the boundaries of this jurisdiction. It has to look to Europe and further afield to do business and I would say over the next 10 years we’re going to see businesses here playing catch-up with the rest of the UK and indeed the Republic of Ireland, in terms of globalising and selling products and services abroad.

How would you describe the culture of Arthur Cox?

AT: I would say it’s very commercial. I think there’s also a lot of freedom for people to develop their own career, style and develop a specialisation.

PC: I think as managers of people, we’re very approachable; we’re also very hands-on. We are both heavily involved in client work; we don’t just run the business. We try to delegate where appropriate whilst supervising everything that goes out. We find that our lawyers enjoy the quality work our clients provide and they respond to this by seeking to provide excellent, high quality and commercial advice at all times. It’s a very friendly and collegiate environment but at the same time it’s very hard working. The lights are rarely turned out at six o’clock.

Unlike our closest neighbours across the Irish Sea, the post is set aside for an individual who is not a member of the government. In Scotland, for example, the equivalent Lord Advocate is indeed a member of the Scottish Government and Dominic Grieve has recently taken up his post in the Liberal-Conservative alliance.

Larkin’s role is more similar to that which Paul Gallagher holds in the Republic. Although he is not a member of Brian Cowen’s cabinet, he does attend meetings in an advisory role.

Interestingly the new Attorney General will not take up the entire brief held by his Westminster-based predecessor. The Director of Public Prosecutions will take the lead in all matters relating to initiating, conducting or ending prosecutions. Larkin, though, will have a strictly consultative role to play.

The UK Attorney General, now referred to in local legal parlance as the Advocate General, will still advise the national government on Northern Ireland law and will also have a minimal role in relation to prosecutions on reserved matters.

Directly accountable to the Assembly, the new role will have speaking rights in the chamber in order to be able to take questions from members. He may also be allowed to speak in debates should the Assembly make standing orders to do so, but it can never confer voting rights.

The Attorney General could, though, decline to answer questions if he deems the answer to prejudice criminal proceedings.

The position’s origins can be found, in recent years at least, in the Criminal Justice Review. Published by the NIO in March 2000, it said: “We recommend that consideration be given to establishing a locally sponsored post of Attorney General, who … would have oversight of the prosecution service.” It added that the figure should be apolitical and would be appointed for a fixed term. The position, it continued, should be seen as “equivalent to that of a High Court judge” in status.

The west Belfast lawyer has been appointed for a four-year term and can only be removed from the post by the First Ministers, having been advised to do so by a tribunal made up of judges from England, Wales or Scotland, and appointed by the Lord Chancellor.

He is also a legislative watchdog; an Assembly Bill can be referred to the UK Supreme Court by the Attorney General if he believes it to be outside the Assembly’s remit or contravenes human rights laws.

It had been anticipated that Larkin would take up the role soon after the justice responsibilities transferred. agendaNi understands that Northern Ireland was therefore technically without a legal advisor between 12 April and 24 May.

Grieve spoke to agendaNi as Shadow Justice Secretary on the election campaign trail. Ken Clarke was appointed to the post in Cameron’s new cabinet with Grieve becoming Attorney- General, the Government’s chief legal advisor. MP for Beaconsfield and a barrister by background, he shadowed Labour’s Attorneys-General from 2003 to last September and also held the Home Office brief from June 2008 to January 2009.

With the devolution of policing and justice, he was keen to keep up links between the judiciary in Northern Ireland and England and Wales. Policy ideas could also be shared, including answering the looming question of how to fund legal aid – now costing £90 million locally and £2.1 billion in the other jurisdiction. David Ford has insisted he will press ahead with plans to cut legal aid fees.

The Justice Secretary brief covers the UK’s constitutional affairs, taking in the overall state of devolution, freedom of information and the whole area of human rights. Pressed on whether more powers should come to Stormont, after the justice transfer, Grieve said the Tories had no plans for a “sudden change” but would be prepared to listen to those calls.

“I think that’s an issue really firstly for the Northern Ireland Assembly and Executive to sort out over time,” he commented.

“We are committed as a party to making devolution in Northern Ireland work, just indeed as we’re committed to making devolution in Scotland or Wales work. We’re a constitutional party and we also recognise that devolution isn’t necessarily written in tablets of stone. It can be adjusted according to the passage of time and what is wanted over here.”

His personal interest in the province started in the 1980s when he twice came to stay with Daily Telegraph journalist Tom Utley, who had a summer house in Strangford. Utley was keen to explain Northern Ireland’s problems to his readers and emphasised the importance of helping to solve them.

“That whetted my appetitive” and the interest continued after his election to the Commons in 1997. Grieve was appointed as a constitutional affairs spokesman in 1999 and started to visit the province to learn about the peace process.

Rights

While Labour brought in the Human Rights Act in 1998, the Conservatives have blamed it for a “culture of grievance” where more litigation benefits lawyers. Its supporters, including many Liberal Democrats, say it protects the public from abuses of government power.

The Tories have instead suggested a UK bill of rights, which although sounding similar would be an improvement, in their view. This would be compatible with the 1950 European Convention on Human Rights but have the flexibility to protect specific British traditions.

Trial by jury, for example, evolved in England and the bill could also balance the media’s freedom of expression with privacy. He foresaw Parliament defining rights better and giving a steer for the judiciary.

On a higher level, it could also incorporate some “basic constitutional building blocks” such as the 1689 English Bill of Rights, which created a constitutional monarchy, and holding parliamentary elections every five years. The latter point has already been agreed by the coalition partners.

“Without creating a written constitution,” he stated, “you could be creating a document which seems to actually set out a framework of what national values are in terms of the legal framework we operate under.”

Grieve suggested that Northern Ireland could have its own section within the UK bill of rights, to reflect what the Belfast Agreement wanted. The Agreement raised the possibility of a specific Northern Ireland bill of rights, because of its own troubled history, but progress has stalled. Nationalists are in favour and unionists generally opposed.

Broken system?

Tories often claim that the criminal justice system in England and Wales was “broken” under Labour. Grieve recognises that Northern Ireland justice has been historically been different, given the “fight against terrorism” but this also meant that other problems went down the priority list.

He is “constantly reminded” that disorder, drug problems and anti-social behaviour have been “a very real feature for many communities in Northern Ireland which have sometimes, as a result of the terrorism problem, gone unaddressed.” Those will now be tackled at a devolved level.

Back across the water, he said the “broken” description comes from a “lack of confidence in the way the system operates”. This was demonstrated, he claimed, by the police and local people having differing priorities, police not being available when they were needed, slow courts and prosecutions, and a very high re-offending rate for released prisoners.

The Tories’ alternative was a focus on crime reduction, cutting police paperwork and “reconnecting” police and the communities they served. Directly-elected police commissioners were proposed.

Grieve was especially keen to highlight a “rehabilitation revolution” where everyone who goes to prison would start a personalised training and education programme. This would continue after release and be provided by the private and voluntary sector, paid according to their success.

Turning to civil justice, he claimed that the legal aid system was “on its last legs” due to inadequate funding and added a warning for local law-makers.

“You are about 10 years behind in Northern Ireland in that context but you are about to confront exactly the same problems, although hopefully you will be able to avoid making the same mistakes that were made in England and Wales 10 years ago.”

Cuts

Cutting spending is high on the Tories’ priority list but they have earmarked health and overseas aid as two areas to protect. It was put to him that given justice’s importance, its budget (currently £10.1 billion) should also not be cut.

Responding, he said he had no doubt that savings could be made and wanted to look carefully at where to do that, if appointed to the role. Fundamental reforms were also needed, such as making the courts more cost-effective and keeping down the cost of custody while keeping up the number of prison places.

“These are challenging areas but I have to recognise that I have to be as pro-active as my other colleagues in trying to ensure that we keep to our budgets,” he said in conclusion. “And I don’t have any complaint or reason to be concerned if I haven’t been exempted specifically and put in a ring-fenced area because I am confident that my colleagues recognise the importance of the work the justice department does.”

Ryan Jennings looks at the proposed changes to legal aid payments in Northern Ireland.

It is a fundamental principle of justice in the UK that those who are unable to pay for their own defence have a right to legal aid.

Two Court Service consultations have been released in an attempt to bring system in line with England and Wales and to reduce the amount spent on criminal legal aid cases in Northern Ireland.

The legal aid budget in Northern Ireland currently stands at £90 million, with £19 million of that being spent on criminal cases and £17 million ‘very high cost’ cases. The system here allows more readily for a defendant to be represented by more than one counsel – usually a Queen’s Counsel and a junior counsel – than in England and Wales.

In England and Wales, those charges on which defendants can be granted an additional counsel in Northern Ireland generally do not apply.

Other, more specific, factors must be met for a court to allow more than one representative i.e. the number of prosecution witnesses exceeding 80 and the prosecution evidence running to over 1,000 pages.

Applying those more limited conditions to Northern Ireland, the Court Service says £1.5 million could be saved per year.

Rules set out in 2005 govern payments to solicitors and barristers who provide defence services for criminal cases at crown court.

Solicitors provide defences in criminal cases by way of standard fees with the exception of large fee cases. They are paid, mainly, by hourly rates.

Barristers’ fees are more complex; they will charge a ‘brief fee’ for taking a case on. There is no hourly charge. They do, however, pay a percentage of their fees towards professional overheads.

Proposed changes to that system would see the Graduated Fee Scheme (GFS) being introduced to Northern Ireland. The GFS would cover those cases which do not fall into ‘high cost cases’ or ‘very high cost cases’. The scheme would also set out when additional counsels would be permitted and additional payment to a basic fee would be based on the number of pages of evidence and the duration of a trial.

That system has been in place in England and Wales since 2007, though according to the Ministry of Justice, that jurisdiction’s expenditure on legal aid still remains “high”.

Switching to the GFS would result in a 57 per cent reduction in fees for solicitors and 30 per cent for barristers.

Comparing Ministry of Justice and Court Service data, the service found that the latter had permitted two counsels being present for 41 per cent of cases. In England and Wales, the figure for two counsels was 2 per cent.

In terms of offences being trialled at crown court, 58 per cent of cases in Northern Ireland were attended by two representatives, whereas in England and Wales it was only 5 per cent.

The work carried out in both jurisdictions is essentially the same, the consultation says, and therefore there should be no reason why fees for that work should be broadly the same.

In 2007, when England and Wales adopted the GFS, agendaNi understands that nearly half of the solicitors who had previously accepted legal aid cases stopped doing so. Indeed in some parts of the south of England it was estimated that there was not a legal aid case accepting solicitor within 35 miles.

The fear which both the Law Society and Bar Council have voiced is that a two-tier system would emerge, with only those able to pay having access to the best legal representation.

Law Society spokesman Donald Eakin told agendaNi that he sees the Court Service’s proposal as simply “transposing the English system into Northern Ireland … where it is just not appropriate”.

The crown court in England and Wales, he says, hears many more low level cases than in the province. Those lower level cases, he explains, would generally be heard in a magistrate’s court in Northern Ireland. Across the water, cases can go directly to the crown court, by-passing the magistrates.

At any rate, prosecution cases are managed differently in both jurisdictions. In England and Wales it is the Crown Prosecution Service, whereas in Northern Ireland, it is the Public Prosecution Service which holds that responsibility. Cases here, Eakin suggests, generally take a much longer length of time, which he says is a “perennial problem”, hence larger fees.

With that in mind, he admits that while the process is not ideal, the proposed changes will not impact on the length of cases. He would, though, be “happy enough” to have a more streamlined process of justice: “It is not it the interest of justice to have it running on for long periods of time.” In short, he knows reform is needed.

“This is public money that is being paid out and quite rightly that needs to be published,” he says. The figure published by the Legal Services Commission, he contends, includes initial outlays of £1.2 million and £200,000 in VAT payments, along with £100,000 for counsel. The real figure, by his calculations, is less than half that quoted.

A review of the scheme in England in Wales began in November and is due to be concluded by Easter. The Law Society understands that it will be highly critical, given the difficulties it has faced and the consequences of it.

For Eakin it would make more sense to propose any changes to the system here after that review has been conducted.

“There are no fat cat solicitors,” he said. “The call-out rate for a solicitor to attend a police station is £43.35, with a one-third uplift after seven o’clock, which is favourable to any tradesman at that hour.”

In a statement to agendaNi, the Bar Council said it is committed to promoting the widest possible access to justice for all members of the public. It is generally supportive of the need to manage fees fairly in order to continue to provide counsel to those who need it most.

The council said that as far back as 2005 it agreed to a reduction in fees of up to 50 per cent in some cases to ensure that the period for payments (often as long as 10 years) could be shortened.

However it argued that the new proposed system has not worked in England and Wales and has resulted in increased delays for major cases and barristers opting out of criminal work.

The consultation of introducing the GFS in Northern Ireland ended on 4 December 2009. Should the changes be made law, they will take effect from 1 February 2010. The reducing the legal representation provided through criminal legal aid consultation ends on 18 December.