Chief Justice offers dialogue with politicians on bail decisions

The Lord Chief Justice Sir Declan Morgan has given a rare broadcast interview addressing head on the alleged “perception “of partiality in recent bail decisions.




The interview opens a dialogue with the aim of educating politicians – in particular the DUP leadership – in the complexities of bail decisions on the Assembly’s own ground, the Justice Committee. The offer is also open for Peter Robinson to talk to him. The chief justice says nothing new of substance. But he clearly feels that the public controversy is serious enough for him to take the highly unusual move of explaining the nature of bail decisions taken by the independent judiciary directly  to the Assembly and  outside the customary venue of open court.  It also marks a change of tone from the earlier judicial warnings to politicans in terms, to back off.

Judicial interviews and dialogue are not quite without precedent. His predecessor Lord (Brian) Kerr was interviewed about his role in April 2009 but this was a set piece and not in the eye of storm unlike Sir Declan’s  interview.

When it was conducting a review of the system of judicial appointments almost exactly a year ago, Sir Declan Morgan told the Justice Committee:  “The formal separation of our respective constitutional roles means that such appearances will be infrequent”.  Will they  become more frequent now? There are obvious risks in the offer he’ll be aware of. Will politicians on both sides be emboldened to demand regular explanations of controversial verdicts and sentences?  Once expectations are raised can they be dampened down without attracting even louder complaint?

Interview extracts   

Obviously it does concern me that there may be members of the community who for one reason or the other question their confidence in the system of the administration of justice.

“That concern on my part is shown by the fact that I’m giving this interview, along with the various other steps that we’ve taken in relation to this, which include the letter which was sent to the justice committee recently and the fact that I’ll be meeting with the justice committee on a pre-arranged basis sometime after this.”

Sir Declan said he had been surprised by the controversy.

“I am in a way because you must remember that the judiciary in Northern Ireland for more than 30 years now have had to deal with some horrendously difficult issues.

“They have managed throughout that time to retain public confidence by virtue of the integrity and independence of their conduct, by their commitment to public service, and by their good judgement, so it is perhaps surprising that at this stage this issue should arise in this way.

“Now that issue has arisen, it’s important that I do what I can to bring as much information to bear on this issue as possible so as to reassure people.”

Sir Declan said he had no plans to meet Mr Robinson.

“Nor do I anticipate that we will be meeting to discuss the matter, although I would be perfectly happy to do so if he wished,” he added.

Peter Robinson said he welcomed the Lord Chief Justice’s “very open and helpful intervention on behalf of the judiciary”.

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  • Zig70

    Morgan needs to grow some and look after his judges.

  • Alias

    The problem defaults back to the political class in NI since it their lack of legislation that allows judges in NI to invent ad hoc reasons to deny bail and to apply them arbitrarily as expedient.

    Bail law in NI should be codified as it is in England and Wales with judges only permitted to deny a person not convicted of an offence his/her human right to freedom under Article 5 of the ECHR if limited conditions are met and met on substantial grounds.

    Human rights are too important to be abused by judges according to their whims. Instead of complaining about it, the political class need to legislate for it.

  • Lionel Hutz

    Keep taking the tablets

  • Alias,
    I don’t know why you keep rabbitting on here. Why don’t you stand for election to the Assembly and float your idiosyncratic ideas there?

  • Other places struggle with bail issues too: NSW gets tough on bail law reform

    “We have all been left scratching our heads from time to time about the inconsistency in which the current bail law is applied,” Mr O’Farrell said.

    “Accused criminals who pose a serious risk to community safety or are likely to commit further crimes will not get bail under this model.

    “Under the current law, decisions about bail are made based on the offence a person has been charged with – not the risk they pose to the community. Our reforms will ensure the risk to the community is the first thing taken into account.”

  • BluesJazz

    Why are we different to the rest of the UK?

  • Lionel Hutz

    I come back to what I was saying on the other thread about the real problem presented over the last few weeks. We just accept that our politicians can say these things. And now we have a chief judge having to come out and calm the waters, twice!

    Politicians do have an entitlement to criticize decisions and judges where necessary. But elected representatives and in particular government ministers also have a duty to uphold the rule of law and to reinforce the independence of the judiciary. Judge’s should not be forced to do that themselves. The mere act of entering a political debate to reinforce the independence of the judiciary, politicizes it and its a slippery slope from there.

    You are right Brian. This could lead to an expectations that the judiciary are to be consulted by the assembly and executive, whenever they hear whispers of concern on the street. Yeah, sure just called the LCJ for a consultation. Bring him before the justice committee till we see what’s going on.

    Is that a separation of powers?

    Politicians should have been answering these questions for the public.

    Of course the questions were not even real. If Peter Robinson didn’t know the law of bail applications, he would have had a word with Arlene. If he and his execuive colleagues were still stuck, he could have asked the Attorney General. If Belfast DUP councillors were unsure, ask the Mayor. This is not complicated and all political parties have lawyers in them.

    This was an attempt to play to the galleries, who cares about the consequences.

    Just to put up an analogy. If there were suspicions that Doctors were putting biased in their treatment of working class people. Do you think that the First Minister would just say it? No, he would calm the waters. He would try to find out if there is any evidence. And if it was necessary, then they would look into it. If he just shouted his mouth off, people would lose faith in the quality of care they receive through the NHS.

    Yet, if its the police or the judiciary, no such restraint exists, from Sinn Fein or the DUP. And the police and judiciary is worse in many ways because the loss of confidence in the rule of law can in the end undermine it.

  • Lionel Hutz

    Nevin, that New South Wales link is scary. There’s no presumption that defendant innocent until proven guilty is not presumed to be allowed freedom.

  • Kevsterino

    The way I’ve always understood it, legislators make laws, judges interpret laws, policemen enforce the laws.

    I think Lionel Hutz, atty at law, is right in that the politicos job is to explain the laws to the public when debating and voting on bills that come before them. If they want a new bail law, then they should enact one that their constituents can have confidence in. If there’s nothing wrong with the law they have, they need to explain that to the public.

    I think Peter Robinson is in dereliction of his duty as First Minister, for he has cynically cast doubt on the justice system for narrow, short term political ends for no good reason.

  • Alias

    Prominent Scottish QC Maggie Scott, for example, has argued that “there has been a failure by the Scottish courts, in particular the appeal court, to engage in human rights implementation into Scots law”, after the High Court’s deferential and cautious approach to the human rights claims advanced in Cadder and Fraser were dramatically and rather scathingly overturned on appeal to London

    The Appeal Court’s change of tone in Cameron may well be an indication that, stung by these criticisms, Scottish courts are beginning much more confidently and more robustly to apply themselves to the human rights norms that constitute Scotland’s “constitution”, under devolution.

    Good article, Nevin. The difference is that a condition attached to codified Scottish bail law by the devolved parliament violated human rights law, whereas NI doesn’t have codified bail law, thereby leaving it to the judges rather than the legislators to violate human rights:

    “…we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR.” – Court of Criminal Appeal in Edinburgh

    Is it acceptable to allow judges to violate human rights until they are merely “stung by these criticisms” into no longer violating them? It is no more acceptable to allow the judges to do this than it is to allow the legislators to do it.

    That is precisely why NI bail law needs to be codified as it is in England and Wales, and to be thereby fully in accordance with Article 5 of the ECHR.

    We will only see the ‘nationalist’ cheerleaders celebrating this abuse by the courts for as long as it is applied to a political purpose of which their tribe approves (censoring those who oppose the removal of symbols of Britishness from civic society) but the approval spawned by that sectarian mentality will vanish just as soon as it is used for a purpose of which they do not approve.

  • märsta

    I don’t see anyone celebrating, I just see exasperation.

  • aquifer

    So the headmaster has asked wee Peter and wee Sammy to his study for a chat.

    Prepare to squirm boys.

  • “the complexities of bail decisions”

    The Bail Report is sitting in the Minister of Justice’s in-tray. Perhaps a measure of reform will be of benefit to the judges, the police, the politicians and the public.

    If too much is left to an individual judge then he or she becomes too vulnerable to attack from a range of quarters. Attacks from politicians may be related to questionable judgements, pressure from the public or an attempt by politicians to enhance their standing amongst the communities that put them in power.

  • FDM

    Legislation, common law, precendent, guidelines the list goes on…

    At the end of the day someone, called a judge, has to make a subjective decision.

    How do you legislate against that?

  • Brian Walker

    Lionel and others..

    There’ s an obvious risk that the parties will try to turn the judges into a political football. I would expect Declan Morgan to address that issue before the Justice Committee.

    Commenters have had a whale of a time in the previous thread over complicating the issue of bail and weaving wondrous tapestries about the supposed political motivations

    I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

    Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident attack has been foiled.

    Why wait so long to lift Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we will never get an answer to such questions and certainly not from the judiciary. Answers in some form may emerge with the PSNI and the DPP if charges are proceeded with.

  • BarneyT

    Bryson and Frazer will, without doubt, return immediately to the activities that initially brought them to the attention of the authorities. This is where the risk lies and they is why they did not achieve bail.

    Clearly the judge felt that Hughes presents little risk of flight or in not inclinded to return to the alledged activities that seemingly brought him to the attention of the authorities.

    Is he not someone that is part of a movement\organisation that has signed up to the peace process and is acting upon that commitment?

    I do believe this is a provactive move and it only serves to help self justify the cause and actions of the dissidents.

  • BarneyT

    excuse typos

  • sherdy

    Will this dialogue be a lesson for the unionist slow learners?

  • mick mccann


    The Law Commission in NI has produced a report on potential changes to bail in Northern Ireland.

    The system in NI is precisely the same as in England – we have exactly the same reasons for refusing bail – just because it hasn’t been codified into legislation does not mean it does not exist – in a common law country quite a lot of law is not codified.

    Also, NI is still subject to Article 5 of the European Convention on Human Rights through the Human Rights Act 1998 so Judges here have to act in a way which is Article 5 compliant.

    Our politicians and media are not educating the public on the fact that there is a presumption in favour of bail and it is only when certain conditions (risk of flight, risk of re-offending, risk of interfering with witnesses, safety) are evidenced then bail will be denied.

    Anyone who doubts that the criteria is applied should sit in QB1 or QB2 in the High Court any day of the week and you will see a High Court Judge or Court of Appeal Judge preside over bail applications and will outline in full the reasons for refusal.

    Also, this is not a political comment, but to balance the argument Colin Duffy was refused bail on a number of occasions over a 2.5 year period and he was eventually acquitted. There was no uproar about his denial of bail.

    Also, Gavin Coney is charged with ‘terrorist’ offences and despite what appear to be adequate sureties and a clear criminal record bail is still denied, without uproar:

    Sammy refers to Mr Justice McCloskey as arrogant – the only arrogant person is Sammy himself. Ignorant could be added to that also when he doesn’t understand fundamentals like the separation of powers.

  • aquifer

    The loyalist flag protesters were denied bail in a lull in an illegal campaign that was complete with very physical attacks on the police, elected politicians, vulnerable civilians, property, and the local economy. The campaign sought to establish a trajectory of escalation leading to the reversal of democratic decisions, with a real danger of death and injury and a return to widespread civil disorder. The police seem to have absorbed the worst of these protests, which are now in decline, with poor attendance.

    Local politicians, instead of ensuring the lull leads to aquiesence, launch into attacks on the justice system to revive the illegal and dangerous campaign.

    Lets go straight to motive.

    The DUP, with the Orange Order and local paramilitary extortionists want to destroy the Parades Commission to keep their sad coat trailing sectarian show on the road, thus arresting the progress of parties of the middle, who can hold the balance of power in our concocted but just and equal little state.

    The Desperate Unionist Party at their squalid best.

    Not very British at all.

  • aquifer

    In a bail application the risk of re-offending must figure.

    Based on their very public utterances It is very doubtful if these pseudo-victims would restrain themselves at all.

    Take them away.


    They have their mouthpieces elected already.

  • Kevsterino[2.01] The politicos job is to explain to their voters a few facts of life the latter might not want to hear and Robinson knows full well what the LCJ is telling him but typically spinelessly has taken the more voter-friendly route of calling on the judiciary to explain[state the obvious] to spare him the risks entailed of giving some tough love to his flock. Really, if Robinson had set out to sabotage his legacy and career since December last, he could hardly have done it more effectively than he has been doing. He’s now damaged goods, No retrieval possible.

  • Alias

    mick mccann, Scotland is also subject to the same provision but its judges regularly violated it with no regard at all to Article 5 ECHR:

    “…we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR.” – Court of Criminal Appeal in Edinburgh

    As judges in Scotland ignored human rights by applying codified bail law, there is no reason to suppose that judges in NI operate to a higher standard particularly when allowed greater discretion to abuse human rights by applying non-codified bail law.

    There is no appeal possible in NI for any person deprived of his freedom by a judge on the grounds that the bail was not denied on “substantial grounds” since there is no codified law that requires the grounds to be substantial.

    That is why the judge in question – and who knows how many other judges are at it – is able to pass off unreasonable grounds as substantial grounds.