The Stephen Livingstone lecture: on the criminal justice system

Continuing review of Martin O'Brien's speech on 'Human rights and the Agreement: how far have we come?', the 2009 Stephen Livingstone memorial lecture.

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O'Brien has harsh words about the slow pace of change in reforming some aspects of Northern Ireland's criminal justice system and attributes this to "resistance at the highest levels". He laments the unacceptable state of our prisons and wonders if the soon-to-be-devolved Department of Justice will simply be the relevant "sections of the Northern Ireland Office with new letterhead":

"The changes in policing and criminal justice emanating from the Agreement were hard-fought. 

Those of us (Stephen included) who were fighting for the implementation of the Patten report and the Criminal Justice Review encountered significant resistance at the highest levels.

It’s telling, for example, that those areas of the Criminal Justice Review which were most concerned with increasing transparency, and human rights compliance are the ones where least progress has been made.

For example we still do not have an equity monitoring system or a representative workforce strategy for the criminal justice system. 

That’s not to underestimate the significant changes that have taken place. 

The old Director of Public Prosecutions Office has been replaced with the Public Prosecution Service and a Code for Prosecutors. 

The setting up of a Judicial Appointments Commission has presented the opportunity to diversify the bench (although we are still notably lacking in terms of sufficient female representation in the senior levels of our judiciary).

I don’t have time to look at everything in this area but I want to focus on two issues that were close to Stephen’s heart – prisons and the administration of justice.

Stephen always said (although I suspect he may have been borrowing the words from someone else!) that you can tell a lot about a society by the way it treats its prisoners. 

I know how disturbed he would be at the state of our prisons today. 
Robin Masefield, the Director of the Prison Service is absolutely correct when he says it’s “unacceptable” that a prisoner with a history of attempted suicide and showing signs of distress could hang himself while prison officers failed to pay attention.

But this is not just about one case – successive reports from the Prisoner Ombudsman, the Criminal Justice Inspectorate, the Human Rights Commission and the NI Affairs Committee to name but a few, point to deep rooted systemic problems that need to be addressed. 

It’s not enough to accept and respond to recommendations in a piecemeal fashion. 

The office of the Prisoner Ombudsman has proved to be very important in upholding the rights of prisoners. 

It’s deeply regrettable that the first incumbent of this office felt compelled to resign due to statutory deficiencies in its independence. 

I’m pleased to see that his successor has continued to call for this to be remedied. 

On the administration of justice, Stephen always argued that we should pay attention to those responsible for running the system. 

He often cited the South African experience and the need to look in the widest terms at those responsible for implementing policies. 

These people can have a huge impact on the culture of institutions and cultures can be very slow to change. 

Stephen was absolutely right – cultural change is the hardest and the slowest.

There is continued evidence today of resistance to change and attempts to claw back hard-fought advances from within the system itself. 

It’s clear that some senior civil servants and the security establishment in particular have slowed the pace of change which was mandated by the Agreement and that they continue to do so.

It will be interesting to see how any new devolved department of policing and justice is staffed for example. 

Will it simply be the policing and justice sections of the Northern Ireland Office with new letterhead? 

Is that what we really need? 

If we don’t look at the people charged with administering change then we risk it being a case of  “the more things change, the more they stay the same.” 

Let’s hope not."