The workload of the High Court

It was also proposed that a Legal Services Commission should come into force, to deal with issues surrounding legal aid. This would somewhat rectify the above situation, as they would contractually work with firms of lawyers who were specialised on behalf of individuals requiring legal aid. There are several associations in England and Wales that influence law reform in Northern Ireland, a more minor one of these being the Civil Justice Reform Group. A Northern Ireland section of the group has been in place since 1998. One of there functions is to ensure that cases are managed properly within the different courts.

It had been thought that case allocation to procedural judges would be introduced, but the CJRG rejected this on the grounds that legal representatives had better expertise in the case in question and in the field in law in which the case was situated. They also pointed out there was insufficient evidence to show that "… practitioner led allocation was failing… " 8 The Group analysed all "tiers" of Courts here, and found that the High Court (among others) had difficulties in organisation, and proposed that case management was introduced.

The form was support towards litigants to keep their cases well ordered, the courts being provided with more supervisory powers and the observance of rule-based timetables. The workload of the High Court was such that it required some organisation. As yet it is quite unclear how the new mechanisms are functioning, although an investigation carried out by the Lord Chancellor's Department has suggested that it is positive so far. The above organizations deal chiefly with reform civil law in Northern Ireland. Reform of criminal law is the responsibility of the Northern Ireland Office (NIO).

Under the 1998 Good Friday Agreement, the Criminal Justice Review Group was set up and recommended 294 changes to the criminal justice system. 9 However, the body that reviews criminal law in England and Wales – the Law Commission – dictates a lot of it in Northern Ireland. The Law Commission was established in 1965 and consists of five very senior lawyers appointed by the Lord Chancellor. It is the most important and influential law reform body that exists for England, Wales and Northern Ireland. One reasonably recent report compiled by the Law Commission was on consent in sexual offences.

10 The paper made reference to a 1976 case of alleged rape; DPP v Morgan. 11 The ratio of this case involved three young men who had sex with a woman, Mrs Morgan, after her husband telling them she would be willing to do so and any struggle she put up was merely pretence. It occurred that the woman did protest but that the men went ahead anyway. She claims she begged her husband to stop them but to no avail. Mrs Morgan prosecuted and the case went to trial. The 3 men – McDonald, McLarty and Parker – were found guilty of rape, and Morgan of aiding and abetting rape.

The men's defence had been that they did not know that Mrs Morgan was not consenting, as her behaviour was consistent with her husband's predictions. The defendants took their case to the Court of Appeal, believing a misdirection on the judge's part toward the jury as he had told them to have "some doubt" 13 about the claim that they did not realise she failed to consent. The Appeal judges thought this comment fair 14 and dismissed the case. However, in the course of their analysis they made reference to the case of Reg. v King [1964] 1 Q. B. 285, 15 which involved bigamy.

A precedent was set here as a person who "honestly and reasonably" believes their spouse to be dead does not commit bigamy if it turns out they are in fact alive. Therefore, a man cannot commit rape if he "honestly and reasonably" believes the woman in question to consent. The House of Lords agreed, declaring that "… a man cannot rape unless he knew at that time that it was against the woman's will or had intercourse with her willy-nilly recklessly not caring whether she consented or not. " 16 The Law Commission sought to define what constituted rape, and reckless disregard of the woman's wishes.

They concluded that an explanation of rape was "… less helpful than a straightforward definition," 17 and went on to define it (see below). They agreed, though, that the prosecution still ought to prove that there was no consent, rather than a suggestion that the defence counsel prove that there had been. The latter seems like a more rational suggestion since it is less likely for a woman to claim she has been raped when she has not than the other way around. Where the problem arises, of course, is in what both the man and woman see as being rape – this can differentiate.

For example, many men do not class "date-rape" as being 'proper' rape, as they have had an evening with a woman who has "led them on. " Women more often see rape as anything that involves her saying no to, but entails him continuing. The Commission defined "recklessly" as the following: 1) The man is indifferent as to whether the woman consents or not 2) He knows there is a risk she may not consent In the case of DPP v Morgan, the second term may be applied. After all, it was the husband of the woman in question that said sexual intercourse would be acceptable to her – not the woman herself.

It was unmerited for the men to simply assume that what Morgan said was factual and in order to establish the truth, especially in such bizarre circumstances, they should have asked Mrs Morgan about her husband's proposal. In short, since Mrs Morgan was never asked about what she did or did not want personally, there was always a risk that she did not consent. The definition the Law Commission's report gave was this: Rape has occurred if: 1) The person knows the other didn't consent 2) i) He ought to have known she didn't consent ii) He didn't check to see if she consented

iii) He had an unreasonably held belief that she did not consent. This was not previously an offence, so it was an effective and fair proposal for the Commission to make. In the present case, the defendants did not check to see if Mrs Morgan consented, and it was unreasonable for them to assume her consent. If the case were coming to trial now, under this definition and these rules, they would be convicted without doubt if they gave the same statements as they did then. It will have bearing on any other cases of a similar nature in the future, since the new rules override the judge's thoughts in DPP v Morgan.

It was suggested within the same report of introducing a new offence called "gross sexual invasion," which would involve intercourse but had a 'lesser degree' of lack of consent than rape. This was, though, rejected since it would quite obviously weaken the law in rape cases: through plea bargaining and such like, many defendants would be found guilty of a lesser offence, when they may well have been guilty of rape. Thus it seems that the Law Commission have considered sexual offences in great depth and have effectively reformed the law to help violated victims gain justice.

That said, many women who claim to have been raped see their alleged attackers being found not guilty 18 – ultimately, it often comes down to the man's word against the woman's regarding whether consent was given. It is impossible to reform that. After the acquittal of those accused of the Stephen Lawrence murder, the Macpherson report recommended the Commission to look into the possibility of reforming the double jeopardy law. It published a paper suggesting that the law stay in place except in cases where strong new evidence had been found.

Paul Roberts 19 asks what makes evidence strong and points out that there is a risk of wrongful conviction from a biased jury who has already seen the individual on trial for the crime. The Commission claim this risk is tiny as the trial is based on the strong new evidence. They say that evidence is strong if it is credible and very indicative of guilt. It is the opinion of many ordinary people that double jeopardy is a ridiculous law. Juries are asked to decide 'beyond reasonable doubt' that a person is guilty, so if there is, in their minds, a tiny chance that (s)he may not be guilty, they are obliged to return a verdict of innocent.

There is, then, a fairly high chance that a number of acquitted defendants are guilty but under double jeopardy, they would never be found so. It looks as if the Commission's decision for modification was entirely justified. In conclusion, there will always be law that becomes outdated and irrelevant and the bodies listed exist to make sure it is kept normative. It is not an exact science, but the systems appear to be working perfectly well. I therefore think the work and effectiveness of the law reform bodies is of good quality, in comparison to what it could be.