1. The Committee is an Ad Hoc Committee of the Northern Ireland Assembly established, in accordance with Assembly Standing Order 49, by resolution of the Assembly on 26 March 2001. As agreed by the Assembly, the function of the Committee is to consider the draft Clauses of the Proceeds of Crime Bill, as set out in the Home Office’s Command Paper Cm 5066, and to report to the Assembly by 29 May 2001.

2. The Committee has 11 members, including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee is as follows:

Mr Alban Maginness (Chairman)
Sir John Gorman (Deputy Chairman)
Mr Alex Attwood
Mr Billy Bell
Mr Seamus Close
Mr Wilson Clyde
Mr Boyd Douglas **
Mr David Ervine
Mr Gardiner Kane
Mr Pat McNamee
Ms Sue Ramsey
Mr Denis Watson*

3. The Committee agreed at the meeting on Tuesday 24 April 2001 that deputies would be acceptable.

4. The Report and Proceedings of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly’s website at http://www.ni-assembly.gov.uk

5. All correspondence should be addressed to the Clerk of the Ad Hoc Committee Proceeds of Crime Bill, Room 371, Parliament Buildings, Stormont, Belfast BT4 3XX. The telephone number for enquiries is +44 (0)28 9052 1263. The Committee’s e-mail address is Adhoc.Crimeproc@niassembly.gov.uk

* Mr Watson resigned from the Committee on 5 April 2001.

** Mr Douglas was appointed to the Committee on 5 April 2001.

Introduction

Remit of the Committee

Meetings of the Committee

Summary of Comments and Recommendations

Proceeds of Crime Investigations in Northern Ireland

Proceeds of Crime Bill

Criminal Assets Recovery Agency

Criminal Confiscation

Civil Recovery

Taxation

Investigations

Money Laundering

Monday, 2 April 2001. Room 144, Parliament Buildings

Tuesday, 24 April 2001. Room 144, Parliament Buildings

Thursday, 26 April 2001. The Senate, Parliament Buildings

Tuesday, 1 May 2001. The Criminal Assets Bureau, Dublin

Thursday, 3 May 2001. Room 135, Parliament Buildings

Tuesday, 8 May 2001. Room 144, Parliament Buildings

NI Human Rights Commission, 24 April 2001

Royal Ulster Constabulary, 26 April 2001

National Criminal Intelligence Service, 26 April 2001

HM Customs & Excise, 3 May 2001

Inland Revenue, 3 May 2001

Written Submission by the Northern Ireland Human Rights Commission

Written Submission by the Royal Ulster Constabulary

Written Submission by the National Criminal Intelligence Service

Written Submission by the National Criminal Intelligence Service to the Ad Hoc Committee
- Financial Investigations (NI) Order 2001

Additional Submission by the National Criminal Intelligence Service

Written Submission by HM Customs and Excise

Written Submission by the Inland Revenue

1. This is a Report by an Ad Hoc Committee of the Assembly in accordance with a resolution of the Assembly on Monday, 26 March 2001.

2. As agreed by the Assembly, the Committee has the following function:

3. The Committee held six meetings during the period covered by this Report: 2, 24 and 26 April 2001; 1, 3 and 8 May 2001 and heard evidence from the following bodies:

• Criminal Assets Bureau
• HM Customs & Excise
• Inland Revenue
• National Criminal Intelligence Service
• NI Human Rights Commission
• Royal Ulster Constabulary

4. The Committee received support and advice from Mr Hugh Widdis of the Assembly’s Research and Library Services.

5. The Minutes of Proceedings and Minutes of Evidence are included at Appendix 1 and 2 respectively.

6. Written submissions are included at Appendix 3.

7. The Committee welcomed the overall aim of the proposed Bill which is to undermine the economics of crime and to add significant weight to the efforts of law enforcement agencies by tightening provisions and enhancing investigatory powers.

8. The Committee agreed that the ordinary citizen should have nothing to fear from the enhanced powers in the Bill. Its fundamental rationale is to recover criminal assets from those who have a lifestyle for which they can show no visible means of support.

9. The Committee noted that no specific clauses have yet been drafted to deal with civil recovery in Northern Ireland and await their inclusion in the final Bill.

10. The Committee welcomed the recognition by the Human Rights Commission that new, innovative thinking is required to deal with the problem of unrecovered proceeds of crime and that traditional legal thinking, such as the distinction between criminal justice and civil justice, may need to be altered in order to allow the legal system to cope with the increasingly sophisticated methods employed by criminals. Existing measures have not been effective in recovering the proceeds of crime, with the size of unrecovered sums already large and growing.

11. The Committee welcomed the Home Secretary’s intention that the proposed new powers, which are to be included in the Bill, should be compliant with the European Convention on Human Rights. Committee members recommended, however, the principle that persons cannot regard as punishment the loss of assets to which they were not entitled in the first place.

12. The Committee welcomed the establishment of an independent agency, with enhanced investigatory powers, dedicated to recovering the proceeds of criminal activity.

• The Director should be autonomous and the Agency should be allowed to work free from political interference.
• The Director should compile a business plan with appropriate objectives and targets, agreed with all key players.
• The staff of the Agency should possess a broad level of investigative experience, criminal, financial and legal, and the Agency should operate on a holistic basis, ensuring a multi-agency approach.
• Police, Taxation, Customs and Excise and Social Security staff should be seconded to the Agency to bring the benefit of their knowledge and experience to assist the investigatory process.
• The official appointed to take responsibility for Northern Ireland must be at Deputy Director level, based locally and must have sufficient seniority to take decisions on behalf of the Agency in Northern Ireland.
• The portion of the overall budget of the Agency, allocated to Northern Ireland, must be sufficient to allow the Agency’s work to be effective.
• Clear criteria must be established to ensure that any decisions taken by the Director of Public Prosecutions and the Director of the Agency on whether to proceed in any particular case, by way of criminal prosecution or by way of civil recovery, do not breach the provisions on equality enshrined in the European Convention on Human Rights.

13. The Committee welcomed the extension of powers of confiscation beyond simply drug trafficking into wider areas including oil fraud and tobacco smuggling.

14. The Committee also welcomed the inclusion of civil forfeiture powers i.e. the ability to seize cash at borders, in relation to the proceeds of, or money intended for use in, any criminal conduct. The proposed new powers to seek a restraining order, preventing the dissipation of assets at any time after the start of a criminal investigation, is welcomed by the Committee.

15. The Committee noted the concerns of the Human Rights Commission, that the use of assumptions may be incompatible with the European Convention on Human Rights.

• In criminal confiscation matters, confiscation orders should only be made where evidence meets the civil standard of proof i.e. the ‘balance of probabilities’.

16. The Committee noted that the European Convention on Human Rights (Article 6) states that any person charged with a criminal offence shall be presumed innocent until proven guilty according to law. It agreed, however, that if proceeds of crime are to be recovered from criminals who are using increasingly sophisticated methods, it is necessary to be innovative.

17. The Committee noted the European Convention on Human Rights principle that there should not be punishment without criminal conviction but agreed that depriving a person of assets, to which they were not entitled, cannot be regarded as punishment.

• The Agency should negotiate settlements where possible, subject to these being backed up by a full disclosure agreement and judgement in default of that agreement.

18. The Committee supported the retention of a single consistent national taxation system, whilst providing the Director of the Agency with additional investigatory powers, independent of the Inland Revenue.

• Clear protocols and guidelines should be agreed between the Inland Revenue and the Agency to agree lines of demarcation and secure the confidentiality of taxpayer information.
• There may be data protection dimensions to the provision for information gateways which could raise the possibility of a breach of Article 8 of the European Convention. The Committee recommends that this matter is thoroughly investigated and guidelines devised which will ensure that Article 8 is not breached.

19. The Committee welcomed the introduction of two new investigative powers i.e. the account monitoring order and the customer information order which will enable law enforcement authorities, the Agency and HM Customs and Excise to trace and investigate suspected criminal assets. It is noted that these new powers will facilitate the gathering of evidence from bank accounts in support of criminal offence and confiscation action.

20. The Committee welcomed the removal of the current distinctions between drug and non-drug money laundering offence provisions. This will remove the requirement to demonstrate in court that laundered money is derived from a specific offence and not from general criminality.

21. The Committee also commended the proposals in the Bill which will extend the offence of ‘failure to report suspected money laundering activities’ to cover proceeds of any criminal conduct.

22. Criminal justice matters are reserved and remain the responsibility of the Secretary of State for Northern Ireland. The Bill also covers excepted matters, such as taxation, which lie solely within the legislative competence of Parliament at Westminster.

23. Although there are many similarities in the law and procedures in Northern Ireland and in England and Wales, there are some differences. It is intended that the Bill will reflect those differences.

24. The legislation in Northern Ireland, which contains powers to assist investigations into the proceeds of crime, is the Proceeds of Crime (NI) Order 199^6. The Order contains provisions to obtain a production order and search warrant similar to those that exist currently in England and Wales. It also makes additional provision for powers of investigation into the proceeds of crime similar to those involved in the investigation of complex or serious fraud throughout the United Kingdom.

25. The Government has laid before Parliament an Order in Council entitled "The Financial Investigations (NI) Order 2001". The main provisions involve –

• extending to Customs and Excise Officers the same financial investigation powers held by the Royal Ulster Constabulary under the Proceeds of Crime (NI) Order 1996;
• requiring solicitors in certain circumstances to confirm whether a named person has been a client for certain types of transactions;
• broadening the scope of the current financial investigation tool of the General Bank Circular, so that it applies in future to all relevant financial institutions;
• providing flexibility on the time allowed for the commencement of a prosecution where those involved in criminal activity attempt to avoid prosecution.

26. It is intended that these powers will be retained and that if necessary, the Government may, by Order in Council, make provision for additional powers to be available to the Director.

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27. The Proceeds of Crime Bill proposes to bring together, in one Act, the law governing investigations, money laundering offences and confiscation. In addition, it will establish the Criminal Assets Recovery Agency (the Agency) which will have both an operational and a strategic role. The Bill seeks to empower the Agency to recover criminal proceeds, making use of a new form of civil litigation in the High Court, and to exercise taxation functions delegated from the Inland Revenue.

28. The clauses of the Bill have been arranged under the following headings –

• Criminal Assets Recovery Agency;
• Criminal Confiscation;
• Civil recovery;
• Taxation;
• Investigations; and
• Money Laundering.

29. The Bill proposes to establish a Criminal Assets Recovery Agency, which will have executive responsibilities for the recovery of criminal assets using a wide range of investigatory powers. It will be able to pursue criminal assets by confiscating the assets of convicted criminals; the recovery of assets through civil proceedings; or the taxation of persons suspected of having benefited from crime. The Director of the Agency will decide which route to pursue depending on the circumstances of each case.

30. The Director will be appointed by the Home Secretary and will be operationally independent. The Director will, however, be required to prepare an annual plan for the Home Secretary’s approval, and submit an annual report, which the Home Secretary will present to Parliament.

31. The Director, who will have a strategic role both in promoting the recovery of criminal assets and in co-operation within the criminal justice system generally, will develop Memoranda of Understanding with law enforcement and prosecution bodies to determine how restraint and confiscation cases are to be apportioned.

32. The Agency will establish a financial investigation Centre of Excellence which will promote good practice and co-ordinate the provision of training and accreditation, in order to increase the number of qualified financial investigators in the law enforcement agencies.

33. The Agency will operate in England, Wales and Northern Ireland. A senior official will be appointed to take responsibility for exercising the Agency’s functions in Northern Ireland.

34. The Committee welcomed the establishment of an independent agency, with enhanced investigatory powers, dedicated to recovering the proceeds of criminal activity.

• The Director should be autonomous and the Agency should be allowed to work free from political interference.
• The Director should compile a business plan with appropriate objectives and targets, agreed with all key players.
• The staff of the Agency should possess a broad level of investigative experience, criminal, financial and legal, and the Agency should operate on a holistic basis, ensuring a multi-agency approach.
• Police, Taxation, Customs and Excise and Social Security staff should be seconded to the Agency to bring the benefit of their knowledge and experience to assist the investigatory process.
• The official appointed to take responsibility for Northern Ireland must be at Deputy Director level, based locally and must have sufficient seniority to take decisions on behalf of the Agency in Northern Ireland.

• The portion of the overall budget of the Agency allocated to Northern Ireland must be sufficient to allow the Agency’s work to be effective.
• Clear criteria must be established to ensure that any decisions taken by the Director of Public Prosecutions and the Director of the Agency on whether to proceed in any particular case, by way of criminal prosecution or by way of civil recovery, do not breach the provisions on equality enshrined in the European Convention on Human Rights.

35. The Bill proposes to extend existing Northern Ireland legislation to make it possible to confiscate the benefits of any conduct that constitutes an offence, or would constitute an offence if it took place in Northern Ireland.

36. In addition to this the Bill proposes –

• That all confiscation hearings will be in the Crown Court;
• In Northern Ireland, restraint and charging orders should be dealt with by the High Court;
• To abolish the role of charging orders in the confiscation legislation;
• That confiscation orders will be enforced as if they were fines; and
• That the prosecuting authority will be empowered to apply to the relevant magistrates’ court for a new enforcement order.

37. Powers already exist to seek restraint of property, suspected to be proceeds of crime, when criminal proceedings are pending. Following a conviction for acquisitive, indictable and some summary offences, the Court can be asked to make a confiscation order equivalent to the estimated value of proceeds. The Bill proposes to amalgamate and strengthen these powers which are currently split between drug and non-drug Acts.

38. The Committee welcomed the extension of powers of confiscation beyond simply drug trafficking into wider areas including oil fraud and tobacco smuggling.

39. The Committee also welcomed the inclusion of civil forfeiture powers i.e. to seize cash at borders, in relation to the proceeds of, or money intended for use in, any criminal conduct. The proposed new powers to seek a restraining order, preventing the dissipation of assets, at any time after the start of a criminal investigation, is welcomed by the Committee.

40. The Committee noted the concerns of the Human Rights Commission, that the use of assumptions may be incompatible with the European Convention on Human Rights.

• In criminal confiscation matters, confiscation orders should only be made where evidence meets the civil standard of proof i.e. the ‘balance of probabilities’.

41. The Bill will create a new right of civil recovery. This will permit the recovery of criminal assets where no conviction has been possible, for example because individuals are able to avoid conviction by remaining remote from the commission of the crimes from which they benefit or because they have moved abroad. This will be a civil law procedure in the High Court, with the Agency having the sole right to bring an action.

42. The Bill also proposes a right to recover, through civil law, any property which has been obtained through conduct that is contrary to the criminal law by way of action in rem.

43. The civil law proceedings will not seek to determine the criminal guilt or innocence of any person, but will focus on whether the property can be shown to have been obtained through some person’s unlawful conduct. To assist this, the Bill proposes that –

• hearsay evidence should be more readily admissible;
• the rule against self-incrimination should not be a bar to the admission, in civil recovery proceedings, of evidence obtained from a respondent under compulsion;
• the civil standard of proof rather than the criminal standard should apply;
• the Director’s right of recovery should apply retrospectively to existing criminal proceeds.

44. In addition the Bill also proposes that property obtained through conduct, which contravened the criminal law of another country is also to be recoverable, provided that the conduct would also be criminal under domestic law if it occurred here.

45. The Bill proposes to place the following limits on the scope of the Director’s claim over property –

• The Director will have a claim to the actual criminal proceeds, but not to the respondent’s other property;
• The Director will not have a claim against a person who acquires criminal property for full value, in good faith and without notice of its alleged criminal origins;
• The Director will not have a complete claim against property of which a third party has been unlawfully deprived;
• The Director will be prevented from recovering criminal proceeds twice over; and
• Where only part of a property or asset can be attributed to the unlawful conduct, the Director may be limited to recovery of only that part.

46. The proposal document indicates that the clauses are incomplete and subject to further development, with consideration being given to what further provisions may be needed in order to give effect to the following policy objectives –

• The need to define the relationship between civil recovery and insolvency proceedings;
• The need for the court to mitigate final recovery orders if the original order could not be made without breaching the court’s duty under the Human Rights Act;
• Provision is to be made for settlement of claims between parties and without the need for litigation;
• The need for a limit on the period after criminal conduct during which property will be recoverable; and
• What powers will be required by interim receivers, and at the final recovery order stage by trustees, in order to discharge their functions.

47. The Committee noted that the European Convention on Human Rights (Article 6) states that any person charged with a criminal offence shall be presumed innocent until proven guilty according to law. It agreed, however, that, if proceeds of crime are to be recovered from criminals using increasingly sophisticated methods, it is necessary to be innovative.

48. The Committee noted the European Convention on Human Rights principle that there should not be punishment without criminal conviction but agreed that depriving a person of assets, to which they were not entitled, cannot be regarded as punishment.

• The Agency should negotiate settlements where possible, subject to these being backed up by a full disclosure agreement and judgement in default of that agreement.

49. The Bill provides for the Agency to exercise taxation functions, under powers vested in the Director by the Board of the Inland Revenue, where income, gain or profits are suspected, on reasonable grounds, to have been derived or accrued from criminal conduct.

50. If at any time the grounds for that suspicion cease to exist, the Director’s locus will cease and the case will be passed back to the Inland Revenue to process the taxation functions in the normal manner.

51. The Director will be able to take responsibility for the affairs of a person only for periods for which there are the requisite grounds for suspicion. In addition to responsibility for income tax, capital gains tax and corporation tax, the Director may also exercise responsibility for inheritance tax and functions relevant to a taxpayer’s role as an employer in respect of PAYE and National Insurance Contributions.

52. It will be for the Director to decide, in consultation with the Inland Revenue, which tax functions the Agency should exercise. Any function the Director chooses not to exercise in a case will remain with the Inland Revenue.

53. The Agency will be responsible for all stages in the process of taxing a person for a particular period. This will include the recovery of the tax, interest and civil penalties. Responsibility for a taxpayer’s affairs will then be passed back to the Inland Revenue to handle the liability for other years.

54. In carrying out these functions the Director will apply the Inland Revenue Board’s interpretation of the law and the extra-statutory concessions published under its care and management powers.

55. The Bill also provides a power, exercisable only by the Agency, to raise assessments which do not require the identification of a source of income.

56. The Bill will make provision for information gateways to enable the Inland Revenue to pass relevant information to the Director. This will be available for confiscation or civil recovery purposes.

57. The Agency will be subject to the same duty of confidentiality as the Inland Revenue. In addition, when the Inland Revenue resumes responsibility for a taxpayer’s affairs, any information obtained by the Agency other than under its taxing powers, will not be passed back to the Inland Revenue.

58. The selection of cases to be dealt with by the Agency, will be a matter for the Director rather than by referral from the Inland Revenue.

59. The Committee supported the retention of a single consistent national taxation system, whilst providing the Director of the Agency with additional investigatory powers, independent of the Inland Revenue.

• Clear protocols and guidelines should be agreed between the Inland Revenue and the Agency to agree lines of demarcation and secure the confidentiality of taxpayer information.
• There may be data protection dimensions to the provision for information gateways, which could raise the possibility of a breach of Article 8 of the European Convention. The Committee recommends that this matter is thoroughly investigated and guidelines devised which will ensure that Article 8 is not breached.

60. The Bill provides five powers:

• Production Orders;
• Search Warrants;
• Disclosure Orders;
• Customer Information Orders; and
• Account Monitoring Orders.

61. These powers, which are to be exercised under judicial authority, are for use in investigations into whether a person has benefited from criminal conduct and the extent or whereabouts of such benefit. The compulsory disclosure power is available only to the Director, whereas the other powers are also available to the Police, Customs and Excise and in some cases to accredited financial investigators.

62. Powers already exist for production orders and search warrants under current legislation. The Bill proposes to amalgamate the current powers that are split between drug and non-drug legislation. The Bill also seeks to extend these powers to the Director and to accredited financial investigators, as well as to Police and Customs Officers which is the current position.

63. A disclosure order will enable the Director to require a person who has information relevant to an investigation to:

• Answer questions at interview;
• Provide information; and/or
• Produce documents.

64. This order will be exercisable against a person whose assets are under investigation or against a third party. In Northern Ireland, financial investigators, once they have been appointed for the purposes of exercising the powers by a County Court Judge, also have similar powers under the Proceeds of Crime (NI) Order 1996.

65. A customer information order would require banks and other financial institutions to provide the details of any accounts held by the person under investigation. Once accounts have been identified, production or account monitoring orders will enable a more detailed investigation to be carried out. An application for a customer information order may only be made by the Director, a police officer of the rank of superintendent or the Customs and Excise equivalent.

66. An account monitoring order will require a bank, or other financial institution, to provide transaction information on a suspect account for a specified period. Power to apply for account monitoring orders will be available to the same range of people as the new production order.

67. The Committee welcomed the introduction of two new investigative powers i.e. the account monitoring order and the customer information order, which will enable law enforcement authorities, the Agency and HM Customs and Excise to trace and investigate suspected criminal assets. It is noted that these new powers will facilitate the gathering of evidence from bank accounts in support of criminal offence and confiscation action.

68. The Bill will reform the definition of the criminal offences of money laundering, and replace the existing separate drug and non-drug offences with a single consolidated and simplified set of offences. This should remove obstacles and loopholes, which currently impede prosecution and which have been attributed to the low number of convictions.

69. The Committee welcomed the removal of the current distinctions between drug and non-drug money laundering offence provisions. This will remove the barrier to demonstrate in court that laundered money is derived from a specific offence and not from general criminality.

70.The Committee also commended the proposals in the Bill which will extend the offence of ‘failure to report suspected money laundering activities’ to cover proceeds of any criminal conduct.

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Present: Mr Alban Maginness , Chairperson
Sir John Gorman , Deputy Chairperson
Mr Alex Attwood
Mr Billy Bell
Mr David Ervine
Mr Denis Watson

Attendees: Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh
Mr Hugh Widdis

1.1 No apologies were received.

2.1 Mr Maginness was nominated by Sir John Gorman and seconded by Mr Watson. No further nominations were received and it was resolved that Mr Maginness do take the Chair.

2.2 Following nomination by Mr Bell and being seconded by Mr Watson it was agreed that Sir John Gorman would be the Deputy Chairperson.

3.1 No interests were declared.

3.2 Sir John Gorman requested that his Directorship of Risk Management International (NI) Ltd be removed from the register.

4.1 The Chairperson referred members to a memorandum from the Committee Clerk on the procedures of the Committee contained in their briefing papers. The Committee agreed to the following procedures –

• Witnesses – the Committee agreed to take evidence from relevant bodies as part of its proceedings.
• Voting – the Committee agreed that in the absence of consensus, simple majority would determine all decisions. It was further agreed that the Committee’s Report would seek to reflect the strengths of the different views expressed within the Committee.
• Minutes of Evidence – the Committee agreed that in the event that any members are unable to attend an evidence session, the uncorrected Minutes of Evidence would be copied to those members for their information.
• Public meetings – the Committee agreed that it would seek to hold as many meeting in public session as possible.

4.2 The Committee agreed that it would consider the matter of using deputies at a future meeting of the Committee.

5.1 Members noted the Committee’s Terms of Reference as agreed by the Assembly on Monday, 26 March 2001.

5.2 Mr Widdis gave a short presentation to the Committee on his background briefing paper on the draft Proceeds of Crime Bill.

5.3 The Committee agreed to schedule evidence sessions for Tuesday, 24 April 2001 at 10.30am and Thursday, 26 April 2001 at 9.30am. The Committee also provisionally agreed to hold meetings on 1, 3 and 8 May 2001.

5.4 The Committee noted a memorandum from the Committee Clerk setting out a list of suggested witnesses. The Committee agreed to invite the following bodies –

• Criminal Assets Bureau;
• National Criminal Intelligence Service;
• Royal Ulster Constabulary;
• HM Customs and Excise;
• Inland Revenue; and
• NI Human Rights Commission.

5.5 Further to these, the Committee also agreed to take evidence from either –

• Liberty; or
• Committee on the Administration of Justice.

6.1 None.

7.1 The Committee agreed that it would next meet on Tuesday, 24 April 2001 at 10.30am in Room 144, Parliament Buildings.

Present:
Mr Alban Maginness, Chairperson
Mr Alex Attwood
Mr Billy Bell
Mr Seamus Close
Mr Wilson Clyde
Mr Boyd Douglas
Mr David Ervine
Mr Gardiner Kane
Mr Pat McNamee
Ms Sue Ramsey

In Attendance: Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh

Apologies:
Sir John Gorman /P>

Mr Maginness took the Chair at 11.38am in private session.

1.1 The apology was noted. Mr Bell agreed to pass on to Sir John and his wife the Committee’s best wishes in view of Lady Gorman’s illness.

2.1 The Chairperson informed members that Mr Watson had resigned from the Committee and has been replaced by Mr Boyd Douglas. The Chairperson welcomed Mr Douglas to the Committee.

3.1 The Minutes of Proceedings for Monday, 2 April 2001 were agreed and signed.

4.1 The Chairperson referred members to the decision at the previous meeting to consider further whether the Committee should allow members to use deputies to attend Committee meetings in their place. The Committee agreed, in view of the unavoidable unavailability of the two representatives of the Ulster Unionist Party over the next few weeks, that deputies could be used if necessary.

4.2 Members discussed a memorandum from the Committee Clerk, detailing the progress on securing the witnesses agreed by the Committee. The Committee agreed in principle to accept the invitation of the Criminal Assets Bureau to visit their premises in Dublin. The proposed schedule of evidence sessions was agreed.

4.3 The Committee agreed to write to the Law Society of Northern Ireland to invite a written submission to the Committee.

5.1 The Committee noted the correspondence from the Committee on the Administration of Justice. It is understood that the Committee for the Administration of Justice and its sister organisation Liberty will respond directly to the Home Office by the deadline of 29 May 2001.

5.2 The Committee noted that the Secretary of State had been informed by the Speaker of the Assembly that the timetable for consultation did not allow sufficient time, not only for the Assembly to carry out a full consultation exercise, but for outside organisations to give their considered views.

6.1 The Committee heard evidence from Professor Brice Dickson, Chief Commissioner and Mr Ronan Deazley, Education Co-worker of the NI Human Rights Commission on the draft Proceeds of Crime Bill. The presentation was followed by a Question and Answer session. [The entire proceedings are recorded separately in verbatim minutes of evidence.]

7.1 None.

8.1 The Committee agreed that it would next meet on Thursday, 26 April 2001 at 9.30am in the Senate.

Present:
Mr Alban Maginness, Chairperson
Mr Alex Attwood
Mr Seamus Close
Mr Wilson Clyde
Mr David Ervine
Mr Gardiner Kane
Mr David McClarty (Deputising for Mr Billy Bell)
Mr Pat McNamee

In Attendance:
Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh

Apologies:
Mr Billy Bell
Sir John Gorman
Ms Sue Ramsey

1.1 The apologies were noted.

2.1 The Minutes of Proceedings for Tuesday, 24 April 2001 were agreed and signed.

3.1 Members noted that a visit to the offices the Criminal Assets Bureau in Dublin has been arranged for the morning of Tuesday 1 May 2001. Subject to the meeting being quorate, it will be regarded as being a formal meeting of the Committee and that deputies will be acceptable. Members agreed to inform the Clerk by mid-day on Friday 27 April 2001 of their intended attendance or otherwise and of their preferred mode of transport.

3.2 A short briefing paper on the Criminal Assets Bureau and copies of the Criminal Assets Bureau Act, 1996 were tabled.

4.1 The Committee heard evidence from Detective Superintendent David Thompson on the draft Proceeds of Crime Bill. The presentation was followed by a Question and Answer session. [The entire proceedings which ended at 10.42am are recorded separately in verbatim minutes of evidence.]

5.1 The Committee heard evidence from Mr Vince Harvey, Director of the UK Division of the NCIS on the draft Proceeds of Crime Bill. The presentation was followed by a Question and Answer session. [The entire proceedings which ended at 11.17am are recorded separately in verbatim minutes of evidence.]

6.1 None.

7.1 The Committee agreed that it would next meet on Tuesday, 1 May 2001 in the offices of the Criminal Assets Bureau in Dublin.

Present:
Mr Alban Maginness, Chairperson
Mr Seamus Close
Sir John Gorman
Mr Pat McNamee
Mr Danny O’Connor (Deputising for Mr Alex Attwood)

In Attendance:
Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh
Mr Hugh Widdis

Apologies:
Mr Alex Attwood
Mr Billy Bell
Mr David Ervine
Mr Gardiner Kane
Ms Sue Ramsey

1.1 The apologies were noted.

2.1 The Committee heard evidence from Detective Chief Superintendent Felix McKenna, Chief Bureau Officer, Mr Barry Galvin, Bureau Legal Officer and other representatives of the Criminal Assets Bureau, Dublin on the work of the Bureau. The presentation, a copy of which is attached at Annex A, was followed by a Question and Answer session see Annex B.

2.2 The Chairman thanked the Garda Commissioner and the staff of the Criminal Assets Bureau for their invitation to visit the Bureau and for their very interesting and beneficial presentation. He also thanked them for the hospitality shown.

3.1 None.

Mr Alban Maginness
Chairperson, Ad Hoc Committee
3 May 2001

ANNEX B

Q1. Does the Bureau have access to specialist staff?

A. The staff of the Bureau mainly comprises Garda officers. Specialists from the Department of Social, Community and Family Affairs and the Revenue Commissioners as well as computer specialists and accountants with forensic experience are also housed and resourced by the Bureau to allow it to operate on a multi-agency basis. Other specialists are available to the Bureau as required.

A. When a Civil Freezing Order is issued by the Courts the burden of proof shifts to the suspect. The assets, about which the Bureau has obtained a civil standard of proof to show they are proceeds of crime, are frozen for up to seven years. If the suspect is unable to prove within that time that they are not proceeds of crime the assets go to the State.

A. A Chief Superintendent of the Garda may make an affadavit to a judge setting out the evidence. This may include information from sources who cannot be named in open court. The main focus of this activity is to shift the onus of proof to the suspected person, in the interest of justice.

A. A unique Ad Hoc Legal Aid system has been established which pays fees to lawyers at higher than normal legal aid rates but lower than commercial rates.

A. The legislation allows Bureau Officers to search the files of both accountants and solicitors. They are also authorised to remove any papers which they might wish to use in evidence, except in the case of papers which are considered privileged, for example those which are part of a current criminal case.

A. The Bureau will negotiate a settlement in some cases if a reasonable proportion of the proceeds of crime can be recovered. The criminal must also disclose all assets during negotiations and if these are later found to be inaccurate the negotiated agreement is set aside and the Bureau will proceed with the prosecution. Often the proceeds of crime have been invested, for example in property, and the negotiated settlement returns to the Bureau the full amount of the original proceeds of crime.

A. The Agency will need to be staffed properly. Staff should have specific guidelines and criteria under which to operate. They should also have a background in investigative work with training in assets trading. The Agency, which should be multi-agency in its approach, should also liaise closely with law enforcement agencies in other jurisdictions as criminals do not recognise borders in the movement of money.

A. Under the Constitution of the Republic of Ireland a criminal does not have a right to have or own proceeds of crime and, as the European Convention does not say different, confiscation after conviction will not be affected. With regard to confiscation after a civil case and the European Convention protocol that there should be no punishment without conviction, the High Court in the Republic of Ireland has decided that it is not punishment to deprive a person of assets to which he is not entitled. The constitution of the Republic of Ireland closely monitors the European Convention and the Bureau is not therefore expecting that there will be any major changes to the legislation which governs its work.

A. The Bureau does not have the power to trawl all banks but rather must identify client accounts at specific banks from intelligence gained and justify to the court the need for an order to check the records of a specific bank. From an operational point of view it is often better to deal with a specific bank branch where staff will know the suspect and often his family, aliases etc.

A. Since 1996 the Bureau has carried out preliminary investigations on approximately six hundred people. No further action has been taken against approximately 350. Of the rest over one hundred and twenty have had criminal actions taken against them and the remaining 230 have had revenue actions taken.

A. A few have moved to Northern Ireland and England. More have gone to Europe, for example Spain, Portugal or Holland. The Bureau liaises closely with law enforcement bodies in these countries.

A. A survey in 1996, after a significant number of gang associated murders, showed that public confidence was low. A similar survey in 2000 showed that public confidence was much enhanced. The number of crimes has also decreased considerably since 1996, although the Bureau alone cannot claim the credit.

A. An order is never issued on an officer’s word alone. He must also have sworn affidavits and other evidence, some of which may not be able to be given in open court.

A. Yes, the claiming of benefits gives a person a record of how he supported himself and his dependants. Criminals are therefore deeply resentful when benefits are withdrawn because they are then exposed to the tax authorities.

A. All benefits which are means tested are stopped, leaving only child benefit. It should be said, however, that the level of proof required to stop benefits is higher than that normally required by the courts.

A. At the early stages of an investigation the database can be successfully utilised to trawl for and identify a suspect. There is no bar to passing on this or any other appropriate information to authorised bodies for use in court but the database can only be accessed by Department of Social Welfare staff.

A. It is based on the best estimate of the Inspector of Taxes, backed up by all the information available and must be robust enough to stand up in the High Court.

A. Since its establishment in 1996 the budget has averaged IR£2.2m per annum.

A. All cases are open to settlement and increasingly people are prepared to negotiate rather than go to court and lose.

A. If a person is resident in the Republic of Ireland, the total assets worldwide can be accessed.

Present:
Mr Alban Maginness , Chairperson
Mr Seamus Close
Mr Wilson Clyde
Mr Boyd Douglas
Mr David Ervine
Sir John Gorman
Mr Gardiner Kane
Mr Pat McNamee

In Attendance:
Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh

Apologies:
Mr Billy Bell

1.1 The apology was noted.

1.2 The Chairman thanked the Clerk and the Committee staff for arranging the visit to the Criminal Assets Bureau in Dublin at such short notice. The Chairman also asked the Clerk to pass on his thanks to Mr Hugh Widdis, of the Assembly’s Research and Library Services, for his assistance to the Committee.

3.1 The Minutes of Proceedings for Thursday, 26 April 2001 and Tuesday, 1 May 2001 were agreed and signed.

4.1 Sir John Gorman said that he would welcome consideration of the proposed model for Scotland as set out in the consultation document.

5.1 The Committee heard evidence from Mr Bill Logan and Mr Donald Toon from HM Customs and Excise on the draft Proceeds of Crime Bill. The presentation was followed by a Question and Answer session. [The entire proceedings which ended at 3.10pm are recorded separately in verbatim minutes of evidence.]

6.1 The Committee heard evidence from Mr John Gilbody, Mr David Humphries and Mr David Hinstridge from the Inland Revenue on the draft Proceeds of Crime Bill. The presentation was followed by a Question and Answer session. [The entire proceedings which ended at 3.33pm are recorded separately in verbatim minutes of evidence.]

7.1 Members noted that no written submission had as yet been received from the Law Society.

8.1 The Committee agreed that it would next meet on Tuesday, 8 May 2001 in Room 144, Parliament Buildings, Stormont. The main item of business will be consideration of the Committee’s draft report.

Present:
Mr Alban Maginness, Chairperson
Mr Seamus Close
Mr Arthur Doherty (Deputising for Mr Alex Attwood MLA)
Mr David Ervine
Mr Pat McNamee
Ms Sue Ramsey

In Attendance:
Mr Tony Logue, Committee Clerk
Mrs Valerie Artt
Mr Damien McVeigh
Mr Hugh Widdis

Apologies:
Mr Alex Attwood MLA
Mr Billy Bell MLA

1.1 The apologies were noted.

2.1 The Chairman informed the Committee that the main item of business was the consideration of the draft report which had been circulated by the Clerk.

3.1 The Minutes of Proceedings for Thursday, 3 May 2001 were agreed and signed.

4.1 The Committee considered the draft report which was amended as agreed by consensus.

4.2 The Committee also agreed that the Chairman would approve the final draft on their behalf. A copy will be circulated to Committee members at that time for their information.

5.1 Members noted that this was the final meeting of the Ad Hoc Committee Proceeds of Crime and agreed that the Chairman would approve the Minutes of Proceedings for inclusion in the report.

5.2 The Committee report will be available to the Assembly Business Committee on 22 May 2001 and should be debated at the Assembly plenary session on 29 May 2001. Any Assembly Member, who wishes, will be able to speak to the Report at that time.

5.3 The Chairperson thanked the Committee members for the giving of their time and effort to consider and report on the consultation document. He also thanked the Committee staff and Mr Hugh Widdis of the Assembly Research and Library Services for their support.

TOP

MONDAY, 5 FEBRUARY 2001

Members present:
Mr Savage (Chairperson)
Mrs E Bell (Deputy Chairperson)
Mr Attwood
Mr B Hutchinson
Mr R Hutchinson
Mr J Kelly
Ms McWilliams
Mr M Murphy
Mr Paisley Jnr

Prof B Dickson ) Northern Ireland Human
Ms M O’Conor   ) Rights Commission

1.

The Chairperson: Prof Dickson, you are very welcome, and we look forward to hearing your contribution.

2.

Prof Dickson: Thank you very much for the invitation, and I apologise for not being able to make a written submission before this morning — I am afraid time did not permit that. I have now presented a paper, and I will briefly refer to it.

3.

The Northern Ireland Human Rights Commission welcomes the Life Sentences (Northern Ireland) Order 2001 because it attempts to bring the law into line with the European Convention on Human Rights, and the comments we are making should be taken in that context.

4.

At paragraph 2 of our submission, we suggest that when the Life Sentence Review Commissioners excercise their functions, they should be required to have regard to the "Convention rights of life prisoners". By virtue of the Human Rights Act they are already under a legal obligation to do this, but the insertion of this phrase would make it more explicit. We then suggest that where the Secretary of State has a discretion to direct that early release provisions apply, that should be replaced with a duty. That would bring the law regarding adult prisoners into line with the law regarding offenders aged under 18 when they committed the offence. We do not see any justification for distinguising between the two groups on the basis of age, and in any case this may well be contrary to section 75 of the Northern Ireland Act 1998.

5.

We have difficulties with two or three provisions in the draft Order, which leave it to the Secretary of State to specify the tariff — that is the part of the sentence which must be served before the early release provisions apply — because the European Convention on Human Rights makes it clear that that kind of decision should be taken by a judicial authority and not by the Secretary of State. It is strange that the Order is setting up the Life Sentence Review Commissioners to direct the release of prisioners in many cases, yet leaves it to the Secretary of State in some residual cases — that seems anomalous.

6.

In paragraph 5 we make it clear that the definition of "appropriate stage" is too subjective and too vague. It is possible that the European Court of Human Rights would not accept this definition. At the very least the word "reasonably" should be inserted at the appropriate point.

7.

Article 6(4) requires the commissioners to be "satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined". Again, we find this provision vague. It does not specify what standard of proof the commissioners would apply and it does not define "serious harm". The phrase "to the public" seems a bit strange as well. For example, what if a particular person might be at risk from the release of the offender, say the person who testified against the offender — would that not matter? Should the person still be released, even though he or she is potentially a danger to that person?

8.

In paragraph 7 we recommend that the views of victims of the prisoner be taken into consideration. Such views should not be determinative of the Life Sentence Review Commissioners’ decision, but they should be taken into account. That would be in line with current trends in international human rights law, of which we approve.

9.

Paragraph 8 indicates that the licence provision should remain in force until the prisoner’s death. That is a particularly harsh provision, which is not mirrored in many other countries. It means that it is impossible for the life prisoner to wipe the slate completely clean, however young he or she may have been when the life sentence was imposed. There is an argument for saying that the licence should have a definite life that is short of the life of the prisoner and the strictness of the licence should diminish as the prisoner grows older. The longer a prisoner has been on licence the more difficult it would then be for the authorities to bring him or her back to prison, which is reasonable. At the very least, the standard of proof, which the authorities should have to satisfy, should increase in proportion to the length of time the prisoner has been on licence.

10.

Paragraph 9 of our submission indicates that the conditions the authorities can impose are unspecified in the Order. Some conditions would be unreasonable and we suggest that the Order should specify that no condition can be imposed which would be a breach of the prisoner’s Convention rights.

11.

At paragraph 10 we indicate that the Order is silent on the standard of proof which the Life Sentence Review Commissioners should apply when making a recommendation for the recall of a released prisoner. It is not clear whether the breach of any condition, even a trivial one, would automatically justify a recall. The Secretary of State still has a discretion to recall a prisoner, apparently in situations where it would not be practicable to consult the Commissioners first. We do not easily see when such a situation could arise.

12.

At paragraph 12 we suggest that the test for recall is also very vague. The phrase "expedient in the public interest" seems to us to be very peculiar and we would suggest the use of the words "necessary to protect the public from serious harm".

13.

Article 9(4) says that the Secretary of State shall refer any case of recall to prison to the Commissioners, but it does not say when this must be done. We think it should be as soon as possible.

14.

Paragraph 14 repeats the point we were making earlier, at paragraph 4, about the Secretary of State having discretion.

15.

At paragraph 15 we indicate that the Order’s definition of a transferred life prisoner is unclear to us. At one point it seems to suggest that people who have not received life sentences elsewhere would still be included. We wonder why.

16.

At paragraph 17 we indicate that the Life Sentence Commissioners’ Rules talk about the chairman of the panel, but do not seem to make any provision for the appointment of such a person. In any event, we do not believe that these types of decisions should be left to one person. They should be taken collectively by the panel or by a majority if necessary.

17.

Rule 9 of the Life Sentence Commissioners’ Rules deals with the location and privacy of hearings. We think that the Human Rights Commission should be permitted to observe hearings and we believe that the hearings should be in public, unless the panel directs otherwise. The current rules say that hearings should be in private, unless the chairman of the panel directs otherwise.

18.

Finally, at paragraph 21 we have grave difficulties with Rules 15 and 16 of the Commissioners’ Rules. These provide for the non-disclosure of confidential information and the appointment of a special advocate. We have long been opposed to this method of dealing with an individual’s liberty. The person is entitled under the European Convention to know the case against himself/herself and to have a legal representative whom he/she can consult. This provision does not permit that, and it worries us greatly.

19.

The Chairperson: Thank you very much. I am sure you have given us many ideas, and put doubts into some people’s minds. The Committee would now like to ask you a few questions. Does the current law in Northern Ireland governing sentences to life imprisonment and detention at the Secretary of State’s pleasure comply with all relevant human rights law?

20.

Prof Dickson: No, we think it does not. The European Convention, which is part of our law, requires a judicial authority to take decisions on the length of person’s sentence, and when he/she should be released. Currently the discretions that lie with the Secretary of State or with the Life Sentence Review Board would not, in our view, comply with the European Convention.

21.

The Chairperson: Does the current law in Northern Ireland governing the release on licence of those on life imprisonment or detention at the Secretary of State’s pleasure comply with all relevant human rights law?

22.

Prof Dickson: The answer I have just given would apply to that as well. Was your first question in relation to the imposition of life sentences, as opposed to release? If that is so then I should clarify my first answer. It was intended to apply to the release system that is currently in place.

23.

To go back to your first question, the current sentencing system is possibly inconsistent with the European Convention, insofar as it allows indeterminate sentences to be applied to people under 18 years of age. By and large, the Convention requires definite sentences to be imposed on individuals.

24.

Mr Paisley Jnr: There are three areas of interest to me. I notice that you object strongly to Rules 15 and 16 on special advocates. I assume that also applies to a witness being able to hear his accusers and his case, and put questions to his accusers. You object to this in this new legislation, though I am not aware of your objecting to it strongly or vociferously in the Northern Ireland (Sentences) Act 1998. As you know, it has been applied in some very prominent cases since then and I would like to hear your views on that.

25.

My second point is on Commissioners. Do you agree that Commissioners should have the following skills: relevant human rights experience; they should not be members, or former members, of the Executive, the Civil Service and they should not have been prison governors; and permanent members of the Human Rights Commission should be at every panel. They should also have judicial experience in criminal trials. You have already addressed the point about members of the Human Rights Commission — I believe you said that they should be present.

26.

In paragraph 7 of your submission — Article 6(4) on the treatment of victims — you make an interesting point about victims being represented. Could you give us your opinion on the operational mechanics and indicate the current position? I understand that under the Northern Ireland (Sentences) Act 1998 and the early release scheme some victims were informed while others were not. How would this be put in place, which victims would be informed, and what role would they play? Will they simply be allowed to express a view to the court, or will that view be recognised in some way?

27.

Mr B Hutchinson: For the record, people are confusing this with the Good Friday Agreement and the early release scheme, and it has nothing to do with either. This has been in place since 1987, and we need to be careful how we answer or ask questions. A person being informed has nothing to do with this. We can draw parallels, but we cannot say that some were informed and others were not. This is a totally different set up, and we must be clear about that.

28.

Mr Paisley Jnr: I am drawing a parallel because I want to find out how the Human Rights Commission believes it should operate. Should it operate from the experience we have gone through or should a new set of mechanisms be put in place, which would allow it to operate appropriately?

29.

Prof Dickson: On your first point, the Human Rights Commission endorsed the points made by our predecessor, the Standing Advisory Commission on Human Rights, in relation to the proposed provisions in the Northern Ireland (Sentences) Act 1998 on non- disclosure of confidential information and appointment of special advocates. Recently, we objected staunchly to those provisions in the case of Mr Adair. We sought permission to observe the hearing by the Sentence Review Commissioners, and were excluded from the closed hearing. People whose cases are being considered by the Sentence Review Commissioners — or in this case by the Life Sentence Review Commissioners — should be able to see the evidence against them and have their own legal representative with whom they can consult. We felt then, and still feel now, that this is a breach of human rights and we went on record to say that in relation to Mr Adair.

30.

As a body, the Human Rights Commission has not discussed whether the Life Sentence Commissioners should have the kind of experience that you suggest. Looking at the skills you have identified, I see no reason why people should not be required to have those skills. The Human Rights Commission would like to have the right to be present, whether as a full member of the Life Sentence Review Commission or not (this is not something we would insist on). We would like the right to observe hearings, to ensure that everybody’s rights are fully protected.

31.

The Commission has not discussed how the mechanism in paragraph 7 would work in practice. For the present, we simply draw the Committee’s attention to the trend in international law and the wisdom of taking into account the views of victims. We are clear that their views should not be determinative, but that they are relevant to any decision on when, or if, to release someone.

32.

Mr Paisley Jnr: Could you explain that to us a little more fully?

33.

Prof Dickson: I am not sure I can. The Human Rights Commission has not yet had the chance to consider how this would work in practice — for example, whether the victim’s view on when an offender should be released should carry a great deal of weight. We are clear that their views should be taken on board, but not about how much weight they should carry, except to say that they should not be determinative, meaning that they alone should not dictate the result.

34.

Ms O’Conor: There are very few international human rights studies in this area. The field is at the beginning of its development and is quite broad. There has been some development in certain jurisdictions but not enough to be able to answer your question in any detail. It is a matter which will need wide consultation and consideration.

35.

Mr Paisley Jnr: Do the mechanics of your suggestion mean that victims should be contacted, sending in their views on the tariff for your attention in writing? Should they be called to a special public hearing to give their views in the presence of the person who made them a victim? Would the victim have to give those views only then, or do you suggest there is some other course of action which the Commissioners could take to give them due weight?

36.

Prof Dickson: We are not making a recom- mendation on any of those points, but I will take them back for the Human Rights Commission to consider. I should have thought that at the very least their views should be sent in writing, but I am not so sure that it would be necessary to go to the length of having the victim or the victim’s relatives present. We are clear that views submitted should not dictate the outcome of the issue, but would be given appropriate weight in the light of all the circumstances.

37.

The Chairperson: That is a very important issue, and I ask you to take it on board.

38.

Prof Dickson: Yes, I will do so.

39.

Ms McWilliams: Can you describe in detail how the tariff is used in Great Britain when life sentences are imposed? Is the life tariff under the draft Order compatible with all relevant human rights law?

40.

Prof Dickson: As far as I understand it, a judge in England sets the tariff in a way which ensures adequate retribution and deterrence against others committing the same offence. The two key concepts are retribution and deterrence. After that period has elapsed, it becomes possible for the person to be released early. There are differences in England which I do not feel qualified to talk about, although perhaps Ms O’Conor can. These concern the treatment of mandatory and discretionary life prisoners and young people detained at Her Majesty’s pleasure. The merit in the draft Order is that by and large it harmonises the law for all three categories — I have adverted to one or two differences vis-à-vis young people. That is greatly to be applauded, because it goes beyond the position in England, which will continue to distinguish between mandatory and discretionary life prisoners.

41.

As to whether this new Order will comply fully with the European Convention, we have indicated that in several respects it may not. For example, retaining a discretion for the Secretary of State to set the tariff rather than requiring a judicial body such as the Life Sentence Review Commissioners, if indeed it is a judicial body for the purposes of the Convention, is a flaw. The vagueness of such terms as "appropriate stage" and "expedient in the public interest" is highly questionable in European Convention terms.

42.

Mr R Hutchinson: You may have answered my question. Do you think it is right that a politician such as the Secretary of State should have the final say as to whether someone is or is not released?

43.

Prof Dickson: No, we do not. That is exactly our point. The treatment of people who have been sentenced to imprisonment should be a judicial matter — at least the length of the sentence should be a judicial matter. Certainly the executive authorities should be responsible for the running of prisons and ensuring that prisoners have their rights protected. We feel strongly that the length of the sentence should be a matter for a judicial authority.

44.

Mrs E Bell: We share the concerns you raised in your submission in paragraphs 8 and 10. We also felt that the fact that

"The licence shall remain in force until the prisoner’s death".

was very harsh. We are concerned that the standard of proof required by the Commissioners is not specified. Do the draft Order’s licence and recall provisions raise any potential human rights concerns, especially in relation to Articles 8 and 9 of the European Convention on Human Rights? If the Order were enacted, would it comply with the highest human rights legal standards concerning life sentence prisoners?

45.

Prof Dickson: It is always difficult to be categorical about whether an actual or proposed law would or would not comply with particular provisions of the European Convention, because it often depends on how the provisions are applied in practice. They may sound fine on paper, but if they are applied in a certain way, they might contravene the Convention. Taking Articles 8 and 9 of the Convention, which protect the right to a private and home life and the right to freedom of conscience and thought and so forth, it is possible that certain licence conditions, for example, the hypothetical situation where a prisoner should not associate with a particular individual, would be a breach of that prisoner’s right to a private life under Article 8.

46.

It is less easy to imagine a breach of Article 9, which protects the right to freedom of religion, conscience and thought. We have concerns that the provisions you have drawn attention to would breach Article 5 of the Convention which protects the right to liberty and security of the person. If somebody can be recalled to prison on a very trivial matter, perhaps on the evidence of an informer or somebody who wants to frame the individual and is making unsubstantiated allegations against a prisoner, then that person’s liberty could be at stake. The general principle in international human rights law is that a very high standard of proof has to be met before a person can be deprived of his or her liberty.

47.

The length of the licence and the lack of clarity about standards of proof also give us serious cause for concern in relation to Article 6 of the Convention, which specifies that in all matters determining a person’s rights and obligations, that person must have a fair hearing. That means having a proper standard of proof and, going back to Mr Paisley Jnr’s question, knowing the case against them and having a chance to answer it.

48.

Mrs E Bell: It is the difference between the legislation as it is written and our responsibility to see that it is correctly enacted and implemented.

49.

Prof Dickson: That is why we suggest inserting a phrase such as "in compliance with the prisoner’s Convention rights" as a safeguard.

50.

Mr B Hutchinson: I would like to ask about recall. It seems very clinical to talk about who should be responsible for the length of the sentence and how it should be done. First, regarding trivial breach, are you saying that we should have some standard of proof for the Commissioners to go by and, if so, are there examples in Europe or elsewhere that we could draw on?

51.

I am not sure who decides if someone is recalled. Do the police make a request to the Secretary of State, or is it the Commissioners? My understanding is that it remains with the Secretary of State, who deals with political prisoners even though he has never admitted it. I think the Secretary of State is the person who holds the licence. I have a licence signed by the Secretary of State.

52.

As for the length of time and who is responsible, are we talking about punishment or rehabilitation? If we are talking about punishment, the court can set the tariff and we can forget about everybody else. However, if we are talking about rehabilitation, then a time frame must be set.

53.

Prof Dickson: It is difficult to point to other international examples regarding the standard of proof. As far as I know, the new system for dealing with complaints against the police force in Northern Ireland has a sliding scale for standards of proof. I will double-check this. The more serious the alleged breach of discipline and consequences for the police officer if found guilty, then the higher the standard of proof that has to be applied.

54.

It might be possible to introduce a comparable provision in the Order. To recall somebody to prison for the rest of his or her life on the basis of an unsubstantiated complaint has very serious consequences for that prisoner, so the standard of proof applied ought to be quite high. Whether or not you would want to make it as high as "beyond a reasonable doubt" is something we could debate. If it were to be as high as that, then the full panoply of fair trial provisions that were applied when the prisoner was first tried would have to be re-applied, and that would be expensive and time-consuming. The standard ought to be commensurate with the consequences that the prisoner stands to suffer.

55.

Who decides to recall a prisoner? The Order is unclear in Article 9. It seems to indicate that the Secretary of State can recall a prisoner in emergency situations, whereas the general position would be that the Life Sentence Review Commissioners would recall the prisoner. It is strange that the Order appears to make no provision to require the Secretary of State, who recalled a prisoner in an emergency in the first place, to submit the matter to the Commissioners for double-checking.

56.

As for rehabilitation, it is certainly the case that the international standards applying to prisoners specify that the main purpose of imprisonment should be rehabilitation. Once the required period for retribution and deterrence has been served, then the sole purpose of imprisonment is rehabilitation. The prisoner should be released once the rehabilitation period is over. We would agree with the implication in your question that a prisoner on licence should be seen as somebody who is going through a rehabilitation process.

57.

Mr J Kelly: I think you have covered Article 11, and the five points made during the lifer’s campaign. You have also covered legal representation at reviews and commissions. Could you be clearer on the stated criteria for release?

58.

Ms O’Conor: I think that the European Court has moved towards risk analysis — and Prof Dickson has already covered this to some extent. Once the period of deterrence, punishment, and retribution has been served, it then becomes a question of risk analysis. It becomes a question of whether there is any threat to the public by the release of the person concerned. That is probably the criterion that would comply with international standards.

59.

Ms McWilliams: On that point, Prof Dickson said earlier that public interest was an expedient matter.

60.

Mr Dickson: That relates to the recall provision in paragraph 12 of our submission, where we state that the phrase "expedient in the public interest" should be replaced with the phrase "necessary to protect the public from serious harm". In relation to the initial release of the prisoner, paragraph 6 of our submission states that the phrase "serious harm to the public" ought to be defined more clearly.

61.

Mr J Kelly: Have you considered the wealth of information which states that after eight years prison becomes debilitating rather than rehabilitating.

62.

Prof Dickson: There is research to suggest that.

63.

Mr J Kelly: Is there any reason why the Commission should not contain peers — people who have been in the position of having served life sentences?

64.

Prof Dickson: The Human Rights Commission has not considered what an appropriate tariff would be in any particular case. We can do so, if the Committee would like us to, although international standards are virtually non-existent.

65.

We have not discussed membership of the Life Sentence Review Commission. However, I could not imagine us having any difficulty with people serving on the Commission who have been released on licence. The Order currently disallows that. Our view would be the same as our views on the Police (Northern Ireland) Act 2000, where we say that people who have served their time ought to be eligible for appointment to the policing board or the district policing partnerships.

66.

Mr Attwood: Did the Northern Ireland Office consult with the Human Rights Commission before the draft legislation was issued?

67.

Prof Dickson: No. We received the first version before Christmas, at the same time as everyone else.

68.

Mr Attwood: Has the Northern Ireland Office formally asked you to submit your views like everybody else?

69.

Prof Dickson: Yes.

70.

Mr Attwood: Would you agree that the biggest structural flaw in all the proposed procedures concerns the powers retained by the Secretary of State in terms of role, discretion, and involvement in the management of life sentence prisoners?

71.

Would you agree that in your submission, at paragraphs 3, 4, 11, 12, 14 and 17, the main theme is that the Secretary of State, for all the intention behind the proposals, retains major intrusive powers?

72.

Prof Dickson: Yes, that would be fair. I would not like to elevate one criticism above all others, but that does seem to be a particular breach of Article 5 (4) of the European Convention.

73.

Mr Attwood: Are there any other international conventions, codes or directives, other than the European Convention, that should inform how this legislation is drafted in terms of either a fair process or the rights of prisoners?

74.

Prof Dickson: There are. The Human Rights Commission looks at the full range of internationally accepted rules and principles for the protection of human rights when assessing actual and proposed laws, policies and practices in Northern Ireland. In this regard we would cite documents such as the UN’s International Covenant on Civil and Political Rights, the UN’s Standard Minimum Rules for the Treatment of Prisoners, and the Council of Europe’s Standard Minimum Rules for the Treatment of Prisoners. It has to be said that none of them are specific on the detail of what we are discussing today.

75.

Mr Attwood: Is there much added value in them as opposed to the European Convention itself?

76.

Prof Dickson: There is some added value, for example, in relation to Mr B Hutchinson’s point about rehabilitation. The European Convention says nothing about rehabilitation, but I think I am right in saying that the UN’s International Covenant on Civil and Political Rights stresses the need for rehabilitation.

77.

Mr Attwood: The document is very helpful.

78.

Mr M Murphy: What laws are there in the Republic of Ireland regarding life sentences? How do they differ from ours?

79.

Prof Dickson: I am afraid you have me there, Mr Murphy. I do not know what the Republic’s law on life sentences is. I can check it out and provide information for the Committee if you would like me to.

80.

Mr Paisley Jnr: You have tried to plug a number of loopholes, but under Article 7 there seems to be a major loophole regarding compassionate grounds. The Secretary of State might at any time release a prisoner due to exceptional circumstances. He is required to consult with the Commissioners unless circumstances render such consultation impracticable. Do you think that this legislation should spell out what the exceptional circumstances should be and also when there should not be consultation with the Commission?

81.

Prof Dickson: The Human Rights Commission has not considered this in detail. As a general rule we would like to see phrases such as "exceptional circumstances" elucidated in some way, either in the legislation or in accompanying codes of practice. It is good practice for guidance to be given on how powers should be exercised without being prescriptive. So the short answer to your question is yes.

82.

The Chairperson: I thank you for your contribution. It seems to me, that a lot of work remains to be done in a very short space of time. I know that we would like to bring you back, but I do not know if time will allow us to do that.

MINUTES OF EVIDENCE
MONDAY, 5 FEBRUARY 2001

Members present:
Mr Savage (Chairperson)
Mrs E Bell (Deputy Chairperson)
Mr Attwood
Mr B Hutchinson
Mr R Hutchinson
Mr J Kelly
Ms McWilliams
Mr M Murphy
Mr Paisley Jnr

Witnesses:

Mr B Fulton ) Probation Board for
Mr A Darnbrook ) Northern Ireland

83.

The Chairperson: You are both very welcome. As you can tell, we have a tight deadline this morning. Thank you for the written submission to the Committee. Do you want to make a presentation?

84.

Mr Fulton: I will say a few words of introduction to make the link to what we have submitted. I will, first, introduce the two of us. I am Assistant Chief Probation Officer and I have responsibility for services to prisoners, released prisoners, and prisoners’ families. I am accountable to the Chief Executive and through him to the Probation Board. Alan Darnbrook is a probation manager with particular responsibilities in this area. That is why we have come to respond to you.

85.

The Chairperson: Both of you have a big responsibility.

86.

Mr Fulton: It does not weigh lightly, in that sense.

87.

I will set the Probation Board for Northern Ireland in context. The Probation Board was set up in 1982, but before that it came under the Ministry of Home Affairs, and then under the Northern Ireland Office.

88.

We have had a presence in prison for 35 years now, both inside and outside, and we have been involved with life sentence prisoners during all that period. We have supervised a proportion of those life sentence prisoners released from that time, right back from the end of the 1960s. That, in a sense, sets our experience. That experience has also meant that the Probation Board has made some comments about the actual structure. When you get to the end of our paper, we comment separately on the structure and what our experience tells us and on the role that we would have to play within that structure and what implications that has.

89.

This has been part of a stage over the last couple of years. The Criminal Justice Review was looking at this issue, and the Probation Board had an opportunity both while it was considering that to speak to it and also after it publicised last spring. The board made a response to that review report. We did, in a sense, put up a model — maybe that is a bit fancy — or framework.

90.

When it came to the response to this particular Order, I suppose that is the shape that we are using in that context. Our experience over that period pointed the Probation Board towards looking for a more open system, a system that was more transparent, in which everybody could see what the roles were. We comment on some aspects of that as we get into how that is translated because each of those issues about openness, in a sense, is addressed in the new Order. You may make judgements about how well they are addressed, but they are addressed.

91.

From the Board’s point of view, a large amount of our functions are in relation to courts. We are at home in that situation, and we are used to dealing with that. The Probation Board was looking for a much more judicial input into the actual process for life sentence prisoners. The setting of a tariff or the way in which the judge making the original sentence actually does that is important.

92.

It is also important from the point of view of the prisoner and all those dealing with that person in the prison system. Up until recently it has not always been clear how long a tariff would be. Therefore there has been a lot of uncertainty all through sentence.

93.

We were looking for a system that separated those factors. It is important to ensure that the length of time, retribution and deterrent elements are marked in a way that allows more focus on risk and rehabilitation. Retribution and deterrence are core in our work in helping prisoners to prepare for freedom. Once that process is complete, it is important to provide a report that gives that kind of risk assessment. If the Probation Service is to be involved in supervision, it must have the opportunity to ascertain what type of programme it will follow.

94.

The Chairperson: With regard to the rehabilitation of life prisoners, what are the strengths and weaknesses of the draft Order?

95.

Mr Fulton: There are many strengths in the draft Order. We would be able to move on from our current position. The strengths are to clarify the length of time the court is setting before release would be considered and the opportunity then to look at the release. The board wanted those stages to be judicially grounded. The first two stages are clearly grounded in the court. The third stage involves the independent body. If the independent body can specify the way in which it will operate — it can be assumed that the structure is to be established — a set of rules must be in place. Some of the weaknesses can be addressed when those rules are set out.

96.

Mr J Kelly: Is the issue of discretionary life sentences to juveniles adequately covered? Take the Matt Lundy case.

97.

Mr Fulton: Are you talking about discretionary life sentences?

98.

Mr J Kelly: Yes.

99.

Mr Fulton: My understanding is that there are certain safeguards relating to young persons who are sentenced at the Secretary of State’s pleasure. Such cases will be referred at certain ages. The Secretary of State may, irrespective of the tariff, refer such cases to the commissioners, and there will be special treatment for under-18s, as I understand the Order.

100.

There have not been many people in the discretionary lifer category in Northern Ireland. There are few in the overall system. There is likely to be an increase in that category, but there are good safeguards for the under-18’s. The system here is limited, first because of the small number of prisons and, secondly, as a result of the comparatively small number of young prisoners in those institutions that maintain them for a long time. It is likely that they will be incorporated in the adult system in some way.

101.

Mr J Kelly: In the sense you are part of the establishment, but is the Board actively involved in attempting to resolve the issues arising from your role in the Probation Service?

102.

Mr Fulton: We see our role in the Probation Board as walking a middle path. It is our role to mediate between the requirements of the courts and the system that we operate, and the needs of the community on the outside. We also have to ascertain how we can provide a pathway for a past offender who wants to work in such a way that the risk is manageable in the community. Our role allows us to find pathways in the system.

103.

Mrs E Bell: I have already declared an interest. My questions will reflect that. In paragraphs 29 and 30, it says

"Where a supervisory element is part of post-release licence, we will have the opportunity to put forward a plan …"

and

"As part of the supervisory function of a life licencee … we would prepare Progress Reports …".

104.

One of my concerns is that the licence is in force until death. What role does the Probation Board see itself as having? The way you have spelt it out in the paper is to try to mitigate the situation. Do you think that it needs to be looked at again, and perhaps amended, before the draft Order is implemented in order to see whether we could make arrangements so that the licence does not have to continue until the person dies? If he is rehabilitated, he should benefit from that.

105.

That obviously involves extra work which will impact on you. Have you considered the extent of the impact, or are you happy enough to go along with this and act as liaison between the two?

106.

Mr Fulton: I will let Alan Darnbrook answer part of that. From our point of view, the difference is between the licence and the supervised part of the licence. The licence being in operation is one issue, and that is pressure on anybody in that kind of situation. Our experience has been with the supervised element of the licence. Alan Darnbrook might say a few words about how that tends to work, because even under the current system we can review that.

107.

Mrs E Bell: Do you think this draft Order improves that situation?

108.

Mr Darnbrook: As was pointed out in paragraph 33 of the paper, we want to include a provision for the licence conditions to be withdrawn at an appropriate time when we feel that the person is fully rehabilitated and the risk is low enough that they do not pose any risk to the community. We achieve that by regular supervision by a supervising officer, regular monitoring of the supervision, assessments at intervals throughout that period and bringing in other agencies as required. Under the present system, a proposal is not normally made until after about five years of supervision. This varies according to the individual circumstances. If progress has been made to our satisfaction and the person is no longer a risk to the community in any form, we would then make a submission to the Secretary of State for the licence conditions to be lifted. From then on, we do not have any further statutory involvement with that person. However, we do offer ongoing voluntary contact and support, should that person require it at any period from then until death.

109.

Mr Fulton: With some of the offences with which we will be dealing, it may take longer to clarify whether the person is likely to leave that kind of offending behind. There is research which shows a longer cycle, and we have to keep that in mind as we look at what the time span might be. In some situations, it might make sense to hold on to that kind of possibility for up to 10 years.

110.

Mr B Hutchinson: You have just said something which I may have misunderstood. Did you say that you had made recommendations to the Secretary of State to have people’s licences lifted after five years?

111.

Mr Darnbrook: No. On occasion we make a recommendation that the supervision elements of their licence be varied after a time when we are satisfied that they have reached a stage of stability.

112.

Mr B Hutchinson: In what kinds of cases do you have this supervision?

113.

Mr Fulton: They are not the cases under the Sentence Review Commission. It is predominantly cases that have been dealt with by the Life Sentence Review Board, which are the de-scheduled —

114.

Mr B Hutchinson: You are talking about non-political cases?

115.

Mr Darnbrook: Yes, absolutely.

116.

Mr B Hutchinson: Mr Fulton, you talked about safeguards for those sentenced at the Secretary of State’s pleasure if those people are under 18. What are those safeguards? What is your opinion of recalls? Are there contradictions between the recalls and the court? Do you believe that too much attention is paid to trivial breaches?

117.

Mr Fulton: I will answer the last one first. Recall is a difficult issue. As a supervising agency we need to be able to act quickly, and we need someone to make that decision. We are more than happy to deal with that, as in our other areas we go to court if necessary. We are quite happy to be as accountable as we need to be. We think that, whatever the legislation, it needs a mechanism whereby a quick decision can be made, and we have been in that situation and have sought that kind of decision making before.

118.

Of course, the quicker people can go before the Commission the better. Our understanding of the legislation is that the Secretary of State will refer cases like that to the Commission. If it is not that kind of emergency, then my understanding is the legislation means it will go to the Commission before a decision about revoking the licence or about recall takes place. We accept that it should not be happening on poor or flimsy evidence and that we have to be more accountable about what we present. We are happy with that. We will look for the Commissioners to lay down requirements on what those hurdles will be before that happens.

119.

Mr B Hutchinson: Have you come up against contradictions in the court? For example, have there been instances of the magistrate saying that there is no case to be answered but the licence has still been revoked?

120.

Mr Fulton: Revoking the licence would not be a decision for the court at that point. Our understanding is that in cases that we have supervised there would be a decision about whether there was such seriousness. Quite often if the case was awaiting the outcome of the court, then review would take into account what the sentence was and the directions of the judge or magistrate before deciding on that. That is the kind of case which, if it is awaiting that decision, could be referred to the Commissioners for a decision.

121.

Mr B Hutchinson: I ask because I checked back on some material released by the Probation Board in the early 1990s. It was claimed that a number of people were taken to court on assault charges, the magistrate threw them out and said there was no case to be answered as at least three of the cases were self-defence, yet all those people had their licences revoked. I was wondering what statistics you have on that.

122.

Mr Fulton: We estimate that we have had five recalls in 20 years in that supervision element. There are aspects of this legislation which will make us more accountable in that situation, and there are also regulations that will make the Executive more accountable in its decision making.

123.

If we can return to the cases of the 18-year-olds, I think it is not so much the facilities but the fact that they are separated, the tariff is likely to be lower in that age group and they would be reviewed at an earlier stage. There is an issue in there which I think has to come after the actual legislation.

124.

The current system has some flexibility in it regarding the preparation for that kind of staged release. Certainly young people need opportunities for that to happen. However, it is not clear at this stage how we find a mechanism to ensure that this can take place in the new situation. The decision made by the Commissioners is about release, and that will be binding. There appear to be safeguards for young people.

125.

Mr Paisley Jnr: The Order that we are considering asks you to provide, although it does not mention you, certain things in terms of the rehabilitation of an offender. I want to look at some of the practicalities and financial realities of that request. The courts, Commissioners and Secretary of State have demanded certain things that you are obliged to deliver. Have you the financial wherewithal to deliver such things on your current budget? Furthermore, can you give us a ballpark figure as to how much it will cost to deliver this request in order to achieve your statutory obligations? This includes your proposals — which are outlined at point 31 — regarding the withdrawal of a licence. Are those proposals in any way financially driven? You are saying that there are certain cases where the licence should be withdrawn — for example, there may be a concern in the community that, for certain crimes, there are high reoffending rates and people could drift into other areas where there are not adequate rehabilitation levels.

126.

Moving on to the issue of the Commissioners, there is some suggestion that they should not be former members of the Executive, civil servants or prison governors. Should the Probation Board in Northern Ireland be in any way a part of the Commission team to consider the financial and practical realities of what is being asked of it?

127.

Mr Fulton: From the Probation Board’s point of view, the Order does not change the resource issue in itself because the number of prisoners that are in the system and were likely to come through under the old system, whichever part of legislation it is. Therefore resource in itself is not a block to us with regard to how this is to be implemented. Like any public body there are occasions when our resources are limited, and we must make priorities. This is high priority work and in the context of decisions that are to be made about funding this issue is one that would come at the top of the list.

128.

There is currently £720,000 which is transferred from the Prison Service to the Probation Service so as to provide a service in prison. That will be one of the areas where the expectations will increase. We with the Prison Service would wish to provide individual and group programmes which assist prisoners to deal with the factors of risk and how they would reduce those factors. So there is a pressure there. There is further pressure in relation to multi-agency. At this time, we do employ psychologists. We have a relationship with two forensic psychiatrists in Northern Ireland. In terms of post-release, multi-disciplinary back-up, expectations will rise and there will be an increased need. Resources are not a prime worry to the service in relation to this Order.

129.

With regard to the Commissioners, the Board is keen that there should be a separation between those making the decisions and those who provide the information.

130.

The Board’s feeling is that, at this point, we should not have staff of the Probation Board for Northern Ireland as Commissioners. We should obviously like their expertise to be represented among the Commissioners in some fashion, and we make some points about how that might be achieved. However, it is fundamental that we are happier coming to provide information, while others who are not involved make their decisions, challenging us about how we made ours.

131.

Mr Paisley Jnr: This brings us back to the issue of resources. Are any of your proposals financially driven?

132.

Mr Fulton: No.

133.

Mr Paisley Jnr: If you had the resources, would you propose it?

134.

Mr Fulton: No, it is not driven by that. It is an area of work where the decision is not made by an individual, but by a number of staff members. One examines the continuing possibilities in a case. Is the person involved living a safe life? Is there a likelihood of their doing anything? However, we currently have 22 supervised life sentence prisoners, and there are 70 to 80 in the prison system. That situation can be dealt with within our resources, allowing at least two probation officers on each case with a package of supervision. The numbers are workable at this stage.

135.

Mr Paisley Jnr: Of those 22, how many cases would each probation officer take on?

136.

Mr Fulton: They would be spread out geograph- ically, but it is an area of work where we certainly endeavour to have a member of the probation staff working with under 20 cases. We aim to achieve a ratio of 1:15 in that kind of situation.

137.

Mr Attwood: The Human Rights Commission referred to its doubts in relation to the non-disclosure of confidential information to prisoners going before hearings. Do you have any concerns about non-disclosure of information to the Probation Board for Northern Ireland in its input into those arrangements?

138.

Mr Fulton: Not at the moment. We have no reason to doubt the information we receive regarding the nature of offences.

139.

Mr Attwood: Have you had any concerns in the past about that sort of information?

140.

Mr Fulton: As far as I am aware, no.

141.

The Chairperson: If the draft Order were enacted, how would the work of the Life Sentence Commissioners impact on that of the Probation Board for Northern Ireland?

142.

Mr Fulton: I feel the earlier answers about resources covered most aspects. The main concern now will be how they wish to do business. A certain part is set out in the rules saying what a probation report to the board would achieve, but one of the main issues for us is finding ways to measure risk. What are their objective measurements? The expectation is that the Commissioners will begin to set out their understanding, which we must translate into our working practice. In our development of standards in relation to a new Order such as this, the Commissioners will be an important source of information on how we should do the work.

143.

The Chairperson: The Commissioners and you will work together very closely on all these issues.

144.

Mr Fulton: In the sense that they set the rules, yes. There will be a certain distance because of our different responsibilities, but, as the Commissioners develop their role, they will clearly set out how they determine risk, and we shall take that back to the Board and use it in our work.

145.

Ms McWilliams: It is perhaps a difficult question for you to answer, but much of this will not change the nature of your work. Your experience has been in the risk of reoffending as well as in rehabilitation. You argue that the courts will look at retribution and detterence, so your major role will be on risk of reoffending. At the moment, you clearly have a great deal of expertise on that.

146.

You could see a conflict of interest, if you, on the one hand are trying to provide information, and, on the other hand, are trying to provide decision making. In relation to Mr Paisley Jnr’s point about decision makers, you suggest that you be excluded from the decision making of the Commissioner’s role and simply be an information feeder. How much credence is given to that role?

147.

Mr Fulton: In these cases it is given a lot. Of course, it is not always possible for us to know exactly what others think, but in the context of what we see of decision making in the current situation, the risk and management plans that we have put up, or the fact that they are not there, would be significant in deciding whether someone was ready for release. It is acknowledged that we have the role of going into the community with somebody, and it is taken into account if we are uncomfortable about that management plan.

148.

Ms McWilliams: Have you managed to analyse how accurate you have been? What percentage have you got wrong?

149.

Mr Darnbrook: I suppose that is reflected in the figure that Mr Fulton mentioned earlier. Over this time there were five requirements to recall because of risk behaviour in the community. It could possibly be argued that we may have got something wrong in those cases, although it must be pointed out that the time that each had spent in the community varied considerably. They had, in the main, reached considerable stability and were well on the road to rehabilitation when certain issues in their lives came up and caused this difficulty. Overall, looking at that figure, we have been reasonably successful in our assessments and the level of error has been quite low.

150.

Mr Fulton: There is bottom line in that we are relieved to be able to sit here and say that nobody under supervision has recommitted a capital offence. It is important in our work in this area that it is rare in the UK and in European situations for that kind of reoffending to happen.

151.

Mr Paisley Jnr: I find your answer very interesting. You say that an offender or a person under rehabilitation can be well on the road to rehabilitation when something peculiar or not obvious has caused them to reoffend. Do you think it is right, under any circumstance, to propose the removal of supervision if something unforeseen on the horizon could upset an offender and make him or her reoffend? Should there not be constant supervision until that person is deceased?

152.

Mr Fulton: That line could be taken, although reoffending is not what Mr Darnbrook talked about. In the majority of cases it has been behaviour which has been of concern, rather than court decisions or a new offence. The balance of the judgement about the stability in a community is made on what supports are around.

153.

That is the balance of the judgement which is made about what the stability in a community may be. What are the supports for a feedback mechanism if someone’s behaviour deteriorates? The Probation Board would be much more reluctant to recommend the end of the supervision period if someone lived an isolated life with no bounds around them.

154.

Mr Paisley Jnr: Again, this is resource driven. If you had the resources you would not need to make that proposal at all.

155.

Mr Fulton: It is about acknowledging that someone has started a new life and is getting on with it. In some cases it is obvious within a year of someone being released from prison that that person is so different from the person who committed the original offence. Part of our work is helping to lay down the foundation stones of that new life with a job or accommodation. Some people move on, but then some life event may hold them back and the Probation Board has to try to get them through that. Your point is very important, but quite often it is about looking at the range of supports and extended supports that they have, and whether there are feedback systems around.

156.

Mr B Hutchinson: You gave us very scant details about why the person went back into prison, but you said there were only five people in 30 years, which suggests that it was five out of quite a number. To use resources to track or supervise those people for the rest of their lives would be a total waste. We could be spending the money on preventative work, rather than on rehabilitation.

157.

Prior to the ceasefires there were 375 Loyalist and Republican life sentence prisoners on the street. In my understanding, only two were put back in prison and not for acts of violence. They were brought back on very scant evidence, which was contradicted by the courts. I am not questioning what you have said, but you should give us those statistics in writing. We do not need names but we need to know the total number of people of whom five reoffended, how long those people were in the community, and how long the supervision lasted. Hansard is reporting this and the statistics you have provided are not complete. If someone comes up with another question, those statistics could look foolish. If we could have those in detail, that would solve all the problems.

158.

Mr Fulton: As we said at the beginning, we were referring to those people who were under our supervision.

159.

The Chairperson: Thank you for your contribution this morning. I know you have a very difficult task, but are you making progress on the situation?

160.

Mr Fulton: We are well bedded in. It is an area of work which is planned and lasts for a long time. It is different from other areas of work which are much more immediate. It has a stability even in our agency with regard to the way in which we allocate resources.

MINUTES OF EVIDENCE
TUESDAY, 6 FEBRUARY 2001

Members present:
Mrs E Bell (Deputy Chairperson)
Mr Attwood
Mr Dalton
Mr B Hutchinson
Mr R Hutchinson
Mr J Kelly
Ms McWilliams
Mr Murphy

Witnesses:

Prof J Jackson ) Queen’s University of Belfast (speaking in a personal capacity)

161.

The Deputy Chairperson: Thank you for coming, Prof Jackson, perhaps would you speak to your submission first and the Committee will ask questions afterwards.

162.

Prof Jackson: Thank you for inviting me to give evidence on the issue of life sentences. A paper was faxed to you this morning by my colleague, Prof Livingstone, although you may not have had an opportunity to read it yet. I will outline briefly some of the points in his paper.

163.

Prof Livingstone and I broadly welcome the draft Life Sentences (Northern Ireland) Order 2001. We do so for two reasons. The first is that the Order takes a principled approach towards the issue of life sentences for prisoners. By that I mean that the Order makes it clear that the liberty of the subject is a matter which primarily should be the concern of independent judicial figures rather than politicians.

164.

Obviously, I say this with some deference to members of the Committee, who are politicians. The point many people have been making for some years — for this Order reflects an approach we see being taken throughout Europe — is that sentencing and the larger issue of releasing life prisoners are better left in the hands of independent judicial figures rather than politicians. The worry, as regards politicians being involved, is the perception that political decisions or influences will govern their views. Where an independent judicial figure sits alongside experts, there should at least be some satisfaction that true impartiality governs these most important issues.

165.

As someone who has taken part in the Criminal Justice Review, I would say that the Order is a broad endorsement of the view expressed in the review that these issues are a matter for judicial figures. The Order makes the point that there are two distinct issues in life sentences. One is what the tariff should be. By "tariff", I mean the term necessary to ensure deterrence and retribution — in other words, the length of time a prisoner deserves. The Order clearly says that that should be a matter for the judge, who, when sentencing someone to a life sentence, should state what he or she feels the tariff should be.

166.

The second issue is protecting the public. Even when someone has served the tariff, he may st