Minutes of Evidence - 05 December 2007

Members present for all or part of the proceedings: 
Mr Alban Maginness (Chairperson) 
Mr Raymond McCartney (Deputy Chairperson) 
Dr Stephen Farry 
Mr Alan McFarland 
Ms Carál Ní Chuilín 
Mr Jim Wells

Witnesses:
Miss Claire Cassidy ) Northern Ireland Assembly Research and Library Services
Miss Carol Doherty

Mr Gary McAlorum ) Department for Social Development
Mrs Linda MacHugh )

The Chairperson (Mr A Maginness):
Two researchers are present: Carol Doherty, who is a barrister, and Claire Cassidy. They have produced a research paper for members’ information that will help us to understand better the provisions of the draft Criminal Justice (Northern Ireland) Order 2007 and, in particular, to highlight issues of public concern that were raised during the various consultation exercises that preceded the publication of the draft Order. I must advise members that the researchers could not go into every aspect of the draft Order in depth during the short time that was available to them. However, the Committee is grateful for the work that they have managed to produce. I welcome Miss Doherty and Miss Cassidy to the meeting. I ask Miss Doherty to take the Committee through the research paper by subject matter. After Miss Doherty’s presentation, to which Miss Cassidy might wish to add, members may ask questions. Thank you very much.

Miss Carol Doherty ( Northern Ireland Assembly Research and Library Services):
Good afternoon, members. I am attending the Committee meeting with my colleague Miss Cassidy to present an overview of the draft Criminal Justice ( Northern Ireland) Order 2007. I will highlight some of the issues that have emerged during various consultations, as well as issues of public interest. I hope that there is not too much overlap between information that members may have already gained and the ground that will be covered during this meeting. I am aware that some members were unavailable for last week’s meeting with the Northern Ireland Office. I hope, therefore, that the presentation will be useful to the Committee. The research paper has been broken down to approximate the subject matter of the draft Order: sentencing; risk assessment and management; road traffic offences; and miscellaneous and supplementary issues, such as the purchase and consumption of alcohol, and penalties.

I will begin with an overview of the draft Criminal Justice ( Northern Ireland) Order 2007. New proposals in the draft Order have been introduced to increase public protection in several ways, which are listed at paragraph 1 of the research paper. The proposed legislation would create public-protection sentences for serious sexual offenders and violent offenders, as well as establishing post-release supervision on their release from prison. New powers are also proposed to increase the management of low-risk offenders in the community by way of electronic tagging, the expansion of curfew orders and the creation of a non-custodial alternative for fine default.

Part 2 of the Order contains proposals for changes to the range of sentences that are available to the courts, with particular reference to the introduction of new measures for sentencing and assessment of dangerous, violent and sexual offenders, as well as the creation of public-protection sentences and post-release supervision. A distinction has been made between those offenders and the management of low-risk offenders in the community by way of the aforementioned electronic tagging and expansion of curfew orders.

Dangerous offenders are considered in Part 2 of the draft Order. An offender is assessed as dangerous if the court decides that there is a significant risk to members of the public of serious harm should the offender commit further such offences. Serious harm means death or serious personal injury, whether physical or psychological. Dangerousness assessments will be based on reports by specialists, including psychiatrists, probation officers or psychologists, who will specifically prepare a report for such an assessment.

Table 1 on page 4 of the paper summarises sentencing and release on licence for dangerous offenders and deals with indeterminate custodial sentences (ICS) and extended custodial sentences (ECS). I will give members a brief overview of both those types of sentence. An indeterminate custodial sentence allows the court to consider cases in which a sentence under article 5 — an extended custodial sentence — would not be adequate for the purposes of protecting the public from serious harm from further offences that are committed by the offender. Therefore, the ICS provides for the indeterminate imprisonment of those dangerous offenders who continue to pose a significant risk of serious harm to the public. It is also worthy of note that the court cannot use an ICS in place of a life sentence. If a defender is liable to a life sentence, the court should pass a discretionary life sentence when the seriousness of the offence requires it.

Article 5 of the draft Order creates the extended custodial sentence. It provides that the extended sentence is made up of the appropriate custodial term and an extension period. The appropriate custodial term is the period that the court considers appropriate to reflect the seriousness of the offence. An extended period of supervision on licence must also be specified by the court, which would be added to the sentence and could be a period of up to five years for violent offenders and eight years for sexual offenders.

To summarise: an offender who has been assessed as dangerous and convicted of a specified sexual or violent offence, which carries a maximum penalty of less than 10 years, will be given an extended custodial sentence. A dangerous offender who has been convicted of an offence that carries a maximum penalty of 10 years or more will be liable for a discretionary life sentence or an indeterminate custodial sentence or an extended custodial sentence.

The Chairperson:
It might be appropriate to stop there to allow members to ask questions.

Ms Ní Chuilín:
It is my understanding, from what you have said, that, if an offender has been deemed dangerous and may receive a life sentence, he or she will not receive an ICS.

Miss C Doherty:
It depends on whether they are entitled to receive a life sentence.

Ms Ní Chuilín:
If they are not, is there anything else?

Miss C Doherty:
Yes, there is. That would depend on public protection and whether the person poses a risk. If the court deems that the offender poses a risk to the public, he or she would be given an ICS.

Ms Ní Chuilín:
Therefore, the point is that there is a difference between life sentences. Is there a discretionary life sentence and a mandatory life sentence? Paragraph 2.1 of the research paper states that a dangerous offender who has been convicted of an offence that carries a maximum penalty of 10 years or more will be liable for:

“(i) a discretionary life sentence or
(ii) an ICS or
(iii) an ECS.”

Miss C Doherty:
Those are the options that are available to the court, depending on the case and on the offender.

Ms Ní Chuilín:
Therefore, they are the options.

The Chairperson:
Let us think that through. If a person is convicted of murder, the mandatory sentence is a life sentence. If that person receives a life sentence, he or she cannot get an indeterminate custodial sentence or an extended custodial sentence. Therefore, there are now three major sentencing categories: the life sentence; the indeterminate custodial sentence; and the extended custodial sentence. What is the difference between a life sentence and an indeterminate custodial sentence?

Miss C Doherty:
They are outlined in article 3(3) of the draft Order:

“‘life sentence’ means—
(a) a sentence of imprisonment for life; or 
(b) a sentence of detention during the pleasure of the Secretary of State under paragraph (1) of Article 45 of the Criminal Justice (Children) ( Northern Ireland) Order 1998 (NI 9) (punishment of certain grave crimes); 
(c) a sentence of detention for life under paragraph (2) of that Article.”

The purpose of the indeterminate custodial sentence is to take into account a significant risk of serious harm to members of the public that might be occasioned by further offences.

The Chairperson:
Let us say that a person commits an offence. Does rape come under that category?

Miss C Doherty:
Yes, it does.

The Chairperson:
There is no mandatory life sentence for rape. I understand that a person can receive a life sentence for rape, but that it is not mandatory. There is a test, and the person who has committed the rape is assessed to be a dangerous offender. In those circumstances, because the person is a dangerous offender, the judge can impose an indeterminate custodial sentence. Is that correct?

Miss C Doherty:
Yes, it is. That is how I understand it. The offences are listed in schedule 1 and schedule 2 of the draft Order.

The Chairperson:
I am using rape only as an illustration of that point.

Miss C Doherty:
It is a good example.

The Chairperson:
Otherwise, the judge’s hands are tied. Normally, he could not sentence a person to life imprisonment for rape. However, the offender might be so dangerous that the judge can impose an indeterminate custodial sentence. At that point, how does an indeterminate custodial sentence differ from a life sentence?

Mr McFarland:
We may be in danger of becoming confused. My understanding of table 1 is that, if the offence incurs a sentence of 10 years or more, the offender will receive a life sentence. If the sentence is for less than 10 years, the offender will receive an extended custodial sentence. However, if the person is a violent offender, who is convicted of an offence for which the maximum penalty is less than 10 years, he or she will receive an indeterminate custodial sentence. In the life sentence category of the table, it is noted that the court can impose a discretionary life sentence on an offender who has been convicted of a serious sexual or violent offence that attracts a maximum penalty of 10 years or more. However in the extended custodial sentence category, it is noted that a violent offender who is convicted of an offence for which the maximum penalty is less than 10 years, he or she will receive an extended custodial sentence. What is the essential difference in that?

Mr McCartney:
The essential difference is the maximum sentence.

Miss C Doherty:
If the offence attracts a maximum sentence of less than 10 years, an ECS may be imposed. There is the potential, where an offence attracts a sentence of 10 years or more, for a discretionary life sentence, an ICS or an ECS to be imposed. That is my interpretation of the Order.

Those three options are available to the court, based on public-protection considerations. If someone is dangerous or violent, as specified in the schedules, an ICS or a life sentence could be imposed. If the convicted offender is entitled to be given a discretionary life sentence then — as I understand it from my reading of the NIO explanatory document — he or she must be given a discretionary life sentence.

Mr McFarland:
Therefore, table 1 is slightly confusing about when a court can impose a life sentence.

Miss C Doherty:
The table was designed to distinguish between an ICS and an ECS. Perhaps it is not as clear as it should be.

Mr McFarland:
I am still confused about the matter.

The Chairperson:
We are all trying to work our way through it. I do not think that anyone can say that they understand the entire issue.

Mr McFarland:
If the information in the table is correct, does that mean that a convicted offender will get a life sentence for committing an offence that would normally attract a maximum penalty of 10 years or more?

Mr McCartney:
No.

Mr McFarland:
That is what it says in the table.

Mr McCartney:
A life sentence may be imposed on them, but necessarily so.

Mr McFarland:
Therefore, if an offence is less serious, it would fall under the extended custodial sentence category. However, if the offender is convicted of a violent offence — or is a danger to the public —that sentence will be upgraded to an indeterminate custodial sentence. Surely all the business of public protection would be incorporated in circumstances where an offender has committed a crime that attracts a prison sentence of 10 years or more. As I understand it, the indeterminate custodial sentence kicks in when the extended custodial sentence does not provide enough protection to the public.

The Chairperson:
I do not fully understand your point. The court cannot use an ICS in place of a life sentence, according to the guidance.

Mr McFarland:
The ICS only kicks in where there is an ECS, and the person is violent.

Miss C Doherty:
The ICS would be handed down to someone who is deemed a dangerous offender and has committed an offence that carries a maximum penalty of 10 years or more. An ECS will only apply if an offence attracts a sentence of less than 10 years.

Mr McFarland:
That is not what the table states. It states:

“The offender will only receive an ICS if the court considers that an ECS would not be adequate to protect the public from harm and will specify a minimum term which the offender is required to serve in custody.”

Therefore, the ICS kicks in when the ECS does not provide enough protection because the offender is violent.

Miss C Doherty:
Paragraph 2.4 of the NIO explanatory document states:

“If an offender has been assessed as dangerous and has been convicted of a specified and serious sexual or violent offence with a maximum penalty of 10 years or more, he will receive either a discretionary life sentence, an indeterminate custodial sentence (an ‘ICS’), or an extended custodial sentence (an ‘ECS’). The offender would only receive an ICS if the court considers that an extended sentence would not be adequate to protect the public from serious harm and will specify a minimum term or ‘tariff’ which the offender is required to serve in custody.”

I presume that that is where confusion has arisen in the table, and perhaps that needs greater clarification.

Mr McFarland:
What page are we on?

The Chairperson:
We are discussing paragraph 2∙4 of the explanatory document.

Miss C Doherty:
I think that that is where the confusion is arising. My understanding is that an offender of an offence warranting a maximum of 10 years or more would receive an ICS or a discretionary life sentence. An ECS would apply to a dangerous offender — someone who has been assessed as dangerous, and who has received a sentence of less than 10 years.

The Chairperson:
Therefore 10 years is the threshold. If an offence warrants a sentence of less than 10 years the offender is more likely to be given an ECS, whereas for offences warranting a sentence of more than 10 years, an ICS may be given.

Mr McFarland:
Why would an ECS be given to someone who has committed a crime warranting a sentence of 10 years or more?

The Chairperson:
No, it relates to sentences of 10 years or less.

Mr McFarland:
Paragraph 2∙4 of the explanatory documents states:

“If an offender has been assessed as dangerous and has been convicted of a specified and serious sexual or violent offence with a maximum penalty of 10 years or more, he will receive either a discretionary life sentence, an indeterminate custodial sentence (an “ICS”), or an extended custodial sentence (an “ECS”).”

Why would an offender who has committed a serious offence for which the penalty is 10 years or more be given an ECS, which technically relates to sentences of 10 years or less? I am trying to understand that.

The Chairperson:
I understand your point. We will have to get clarification from the NIO. The nature of an ECS is such that offenders would be given an extended period at the end of their sentences to help keep them under control because they would be considered to be dangerous.

I assume that this provision is to cover the situation in which offenders who are deemed to be dangerous are being released from prison at the end of finite sentences. The objective is to remedy the problem of what will happen to such prisoners when they have served their sentences.

Mr McFarland:
Table 1 in the research paper states that a court can impose an ECS when:

“a dangerous offender convicted of a specified sexual or violent offence for which the maximum penalty is less than 10 years”.

Miss C Doherty:
Mr McFarland, are you saying that the situation is unclear because one thing is being said in the explanatory document and another —

Mr McFarland:
I am a layman; I am not an expert.

Miss C Doherty:
I think that you are making a valid point.

Mr McFarland:
The issue is about when a court can impose a sentence. Table 1 states that an ECS can be imposed on a dangerous offender who has committed a specified sexual offence, etc, for which the maximum penalty is less than 10 years. The situation is, therefore, that the ECS applies to crimes that attract a sentence of 10 years or under and where the offenders are dangerous. If it is deemed that such offenders will not be “civilised” at the end of their sentence, their sentences might be upgraded to an ICS.

Miss C Doherty:
A sentence cannot be upgraded from an ECS to an ICS.

Mr McFarland:
A judge might decide that a sexual offender, for instance, who has previously committed a crime, is unlikely to reform. He might therefore decide that such an offender should have an ICS rather than an ECS, because he does not know what state the offender will be in at the end of his or her sentence.

The Chairperson:
Miss Doherty, do you think that could happen?

Miss C Doherty:
The court would consider the likelihood of someone reoffending. The sentence would be proactive, rather than being based on good behaviour.

Mr McFarland:
The explanatory document seems to suggest that an offender who receives a sentence of less than 10 years would get an ECS, and that an ICS would apply if the judge were concerned that an offender was in danger of reoffending. However, a life sentence could apply to a sentence of 10 years or more. Therefore, any of the three sentences could apply for sentences of more than 10 years.

Miss C Doherty:
Only one sentence would apply for convictions of less than 10 years.

Mr McFarland:
Perhaps I am just stupid, but that does not compute with me. That is what the explanatory document is saying, but perhaps the Order says something different.

The Chairperson:
We will try to clarify that.

Mr McCartney:
A life sentence prisoner would receive an indeterminate licence. The ICS licence could then be revoked.

The Chairperson:
But it is finite.

Mr McCartney:
The difference between a life sentence and an ICS relates to parole conditions.

Ms Ní Chuilín:
I understood Alan’s point until he started giving examples.

The Chairperson:
Alan, you have confused Carál.

Ms Ní Chuilín:
I think Alan’s that question was that if someone were deemed to be violent and were convicted of sexual or violent offences, why would they receive a sentence of less than 10 years? The concern is that an offender could get an ECS for a sentence of 10 years and below, but if part of the crime were sexual or violent, that could bring them back up to an ICS. That is where the confusion lies, rather than in the difference between an ICS and a discretionary, or mandatory, life sentence.

Miss C Doherty:
I understand where the confusion lies. We have said that an ECS is the only sentence that would be applicable for convictions of less than 10 years, but the explanatory document states that an offender would receive an ICS if a court considered that an extended sentence would not be adequate, thereby using an ICS as a second example. The NIO would need to clarify that.

The Committee Clerk:
My understanding from the NIO is that an offender could receive an ICS or an ECS for a sentence of 10 years or more. An ECS could apply to sentences of less than 10 years or to sentences of more than 10 years. However, we will need to go back to colleagues in the NIO for clarification and come back to members next week.

Dr Farry:
I am fairly clear on the matter. Basically, if an offence attracts a penalty of 10 years or more, an offender could get a life sentence, an ICS, or an ECS, provided he or she were judged to be dangerous. If the offence attracts a sentence of less than 10 years, the only option would be to impose an ECS, subject to the offender being deemed as dangerous.

Miss C Doherty:
Yes, but the explanatory document is misleading, and there is definitely a need to clarify paragraph 2.4.

Dr Farry:
My interpretation is based on my reading of the explanatory document, but perhaps I am missing something.

Mr McCartney:
If an offender already has a conviction, comes back before the court for a lesser offence, and is given a four-year sentence; that would lay provision for the offender to get an indeterminate sentence. On that second occasion, the offender would be being accused of a lesser offence, and even if the judge knew that the offender was a violent person, he or she could not be sentenced to more than 10 years. The offender could only be sentenced to five years perhaps. An ICS could be imposed at that stage.

Mr McFarland:
If a person were convicted of a much more serious offence, which were subject to a sentence of 10 years and over, he could be given an ECS, an ICS or a life sentence. Why on earth —

Ms Ní Chuilín:

• would you give him an ECS?

Mr McFarland:
Absolutely. That is my question. Why is that an option? I could understand if it were not available, because for sentences of 10 years and over there is the alternative option of a life sentence. An offender could receive a life sentence and an ICS on top of that. If the sentence is 10 years and under, that could attract an ECS. An ICS can be added if there are worries about what will happen on release. All of that is logical. However, it does not make sense to make all three options available for sentences of 10 years unless we are missing something.

The Chairperson:
We will attempt to clarify that.

Miss C Doherty:
I will make a note of that.

The Chairperson:
Perhaps we should talk to the NIO about that as well. It was useful to stop at that point. I interrupted you, Miss Doherty. Please carry on from where you left off.

Miss C Doherty:
I will move on to the general provisions for custodial sentences, which are contained in Part 2, Chapter 2 of the draft Order. The draft Order defines custodial sentencing for offenders over the age of 21 years as a “sentence of imprisonment”, and lists five definitions for offenders under the age of 21 years. The chapter also includes the restrictions on imposing discretionary custodial sentences; the length of discretionary custodial sentences; the length of custodial periods; the procedural requirements for custodial sentences; additional requirements in the case of mentally-disordered offenders, and disclosure of pre-sentence reports. For the purposes of legislative consolidation, it is my understanding that Chapter 2 replicates some of the provisions from the Criminal Justice ( Northern Ireland) Order 1996. It is, in parts, essentially the same.

Provisions for release on licence are contained in Chapter 3 of the draft Order. Offenders serving determinate custodial sentences, also known as fixed-term prisoners, are outlined in the draft Order. Such offenders are released after serving a requisite custodial period, which is specified by the court. For prison sentences of less than 12 months, the court will set licence conditions. For longer sentences, the Secretary of State will set licence conditions, taking into consideration the court’s recommendations.

Once offenders have been released after a custodial sentence they will be placed under supervision. This new form of imprisonment will replace unconditional release at the halfway point and remove automatic 50% remission.

In May 2005, the NIO ‘Review of the Sentencing Framework in Northern Ireland: A Consultation Document’ raised some points for consideration on discretionary release, which are quoted in our research paper. The review of sentencing also highlighted the degree to which the period in custody could be varied. It was suggested that this system could result in less certainty about the period that a prisoner would spend in prison, which might have an impact on public confidence.

Members may also be aware of the topical situation of prison overcrowding in England and Wales. The press has reported today that Lord Carter, who had been tasked with the investigation into the supply of prison places and the demand for them in the short, medium and long term, was set to announce that jail sentences, in certain cases, should be given only if there are empty cells, in a bid to balance demand against supply. He is also expected to propose a limit on indeterminate prison sentences and a move towards expansion of community penalties. Those proposals will clearly raise many issues of public concern and may also decrease public confidence in the system.

The Chairperson:
May I stop you there? What is the current state of prison accommodation in Northern Ireland? What are the stresses and strains on prison capacity here, and what impact might that have? Mr McCartney raised an issue with me privately about the need for someone from the Prison Service to appear before the Committee to discuss the repercussions for the Prison Service if this legislation is passed. We have to think about its impact in practice — the effect on prison capacity and on good order and discipline in the prison establishment.

It is not just a matter of getting the sentencing right; we must also consider what the consequences will be.

Ms Ní Chuilín:
I will not go down the Carter route, because I think his comments are flawed.

The Department of Health, Social Services and Public Safety is now responsible for the health and well-being of prisoners. The research paper refers to the provisions for custodial sentences that are contained in Part 2, Chapter 2, of the draft Order. That chapter includes additional requirements in the case of mentally-disordered offenders. An offender who is given a custodial sentence and who is put away in a locked hospital is treated differently to a prisoner with mental-health difficulties. If we are to take evidence from the Prison Service, we should also perhaps ask for evidence from the Department of Health, Social Services and Public Safety about what impact, if any, those additional requirements will have. As well as asking about the ratio of prisoners, good order and discipline, more must be asked about the needs of prisoners.

The Chairperson:
I do not know whether colleagues would be interested in hearing from the Prison Service but it might be helpful.

Mr McFarland:
It would be important to hear evidence from the Prison Service. As the Committee probably knows, some years ago, one could not walk through the centre of Boston in America. The people there were given the choice of putting up with the situation or paying for increased prison places out of their local rates. They voted to increase the number of prison places and, as a result, the entire centre of Boston was cleaned up and has been peaceful. We are heading for the same discussion here.

Britain and Northern Ireland have the largest prison populations that they have had for a long time, if not ever. However, we have an increasingly lawless society, when ordinary crime is considered. Another Committee is considering the devolution of policing and justice, and that issue is tied in with this one. At some stage, the Assembly will have responsibility for policing and justice. As Mr Wells has said, if a person were to pitch their court case at a time of peak demand and when there are no prison places available, lawyers could attempt to steer their clients before the courts —

Ms Ní Chuilín:
That is what is being done now; why not do it when prisons are overflowing?

Mr McFarland:
If people were to go before a court, and no prison places were available, they would get out straight away. If we were to reach that stage, our criminal justice system would have lost the plot.

Ms Ní Chuilín:
Or they could pick when they would like to go in and do a couple of months.

Dr Farry:
Alan got things slightly wrong on a couple of points. First, the prison population has been increasing since the late 1990s, when the mass early-release scheme took place after the Good Friday Agreement. Before that, the prison population in Northern Ireland was significantly higher than it is today. There are around 1,500 prisoners in the three prisons.

Mr McFarland:
I was talking about the UK-wide prison population. Leaving aside terrorist crime, the prison population has increased.

Dr Farry:
We have had a marginal increase in recent years; the crime rate in Northern Ireland has not risen hugely. If anything, it has stabilised over the past three or four years. In some respects, the crime rate may even be declining. Our prisons are at full capacity, and some people are sharing cells in Maghaberry Prison when the ideal situation is that everyone should be in single-cell accommodation.

The biggest problem with prison capacity is the speed of justice. More than 40% of current prisoners are on remand as opposed to being sentenced. Another issue, which the Prison Service is also concerned with, is that a number of people are in prison for defaults on fines. In the view of the Prison Service, those people should not be in prison; they should be dealt with elsewhere. If that were done, it might rebalance the situation. I agree that we should listen to the Prison Service, but the problem is multi-faceted.

The Chairperson:
The Committee will need to hear from the Prison Service to find out the facts on the issues that Dr Farry raised in his useful contribution. It could also address Ms Ní Chuilín’s point about those who suffer from health problems — mental or otherwise. I am not sure if the Prison Service could deal with that matter separate from the Department of Health, Social Services and Public Safety.

Ms Ní Chuilín:
I think that it could.

The Chairperson:
As the Criminal Justice Inspection Northern Ireland will have an opinion on the impact of the new arrangements, the Committee could hear from it. I have probably confused Miss Doherty and made her lose her place.

Miss C Doherty:
I would refer the Committee to curfews and electronic monitoring.

The Chairperson:
Will automatic remission be removed as a result of the draft Order?

Miss C Doherty:
Yes; but only automatic remission.

The Chairperson:
Yes; remission will remain, but automatic remission will not. Remission will then be determined by the courts at the point of sentencing — is that the net result of the draft Order?

Miss C Doherty:
It is dependent on the offence.

The Chairperson:
Of course, but is it correct that the court will determine the amount of remission?

Miss C Doherty:
Yes; as far as I am aware.

The Chairperson:
The parole commission will also have a role.

We will move on.

Miss C Doherty:
As regards curfews and electronic monitoring, the draft Order creates new powers, which will allow increased use of curfews as a condition of bail and as a condition — or requirement — attached to certain non-custodial sentences. The draft Order will also allow for the use of curfews as a condition of a licence on release from custody. Therefore, the creation of powers for electronic monitoring will allow for the effective monitoring of curfews set for certain offenders. That raises some serious human-rights implications.

During the review of the criminal justice system in Northern Ireland in 2000, there were suggestions that electronic tagging should be introduced in Northern Ireland, with human rights also being considered. On that subject the review added:

“However, there are human rights implications that would need to be considered. It could be argued that the wearing of tagging devices amounts to a degrading form of punishment and that where its use imposes undue hardship on members of the tagged individual’s household this might infringe the right to privacy and family life. Its use in certain circumstances in Northern Ireland might also have the effect of putting offenders at risk.”

The new proposals set out in the draft Order provide the Secretary of State with the power to release a standard determinate prisoner early subject to curfew and electronic monitoring arrangements. Release under such circumstances will be subject to strict conditions and will only take place towards the end of the sentence.

I now move on to supervised activity orders. Chapter 5 of the draft Order creates a supervisory activity order for the court's consideration in cases of fine default instead of a short period in custody. That is another topical issue. Under the new provision, the court will be able to impose a community-based alternative punishment for non-payment of a fine instead of a period in prison. The new arrangement has been welcomed by Criminal Justice Inspection Northern Ireland, which states that the current practice of imposing very short periods of imprisonment is an ineffective use of prison resources.

Further support for the new provision is also shown in the review of the sentencing framework in Northern Ireland, which was carried out in 2005. During the consultation, many respondents strongly expressed the view that custody should not be used for fine default. I have listed several other considerations in the research paper for members, which are in italics.

Moving on to parole commissioners —

The Chairperson:
Before we move on to that, is everybody happy with that explanation?

Mr Wells:
The last time the Committee discussed the matter it was stated that if the community-based alternative is flower arranging or pottery then the system will fall into disrepute.

We have not had any clarity as to exactly what the alternatives will be.

The Chairperson:
I am just thinking of the beneficial effects of flower arranging.

Mr Wells:
I am sure that an armed gangster who was involved in a hold-up, or someone who has defaulted on a massive fine, would enjoy flower arranging. That is OK, but I do not know whether the public will perceive it to be a fitting punishment for withholding payment of a fine. The activity should be a deterrent such as street-sweeping or removing graffiti.

The Chairperson:
Of course, the material does not go into that detail.

Mr Wells:
We have not been given that level of detail, so we do not know what we are signing up to.

The Chairperson:
I think that NIO officials said that there would be regulations to deal with that aspect.

Mr McFarland:
It is interesting that, in Scotland, social services decide on the activity, whether it is social education, financial management or unpaid work in the community. As Jim Wells said, the public would expect the activity to be difficult in some way.

The Chairperson:
I take the point.

Miss Doherty, please continue.

Miss C Doherty:
I will now move on to parole commissioners. I understand from the Committee Clerk that the chairperson of the parole commission will give evidence to the Committee in the next few weeks, but I will go through the research paper briefly.

The provisions contained in Chapter 6 of the draft Order would rename the current Life Sentence Review Commissioners as the parole commissioners for Northern Ireland. Parole commissioners will assess how suitable dangerous offenders are for release into the community, and they will also review decisions on recalling licensed prisoners to custody. At the moment, the Probation Board is consulting on its corporate plan for 2008-11, and the closing date for responses is January. With an increase in the remit of the parole commissioners to incorporate public protection sentences, consideration may need to be given to resource allocation. Again, that issue applies throughout the Order.

That completes the first part of the presentation. I will now pass you over to my colleague Claire Cassidy, who will take the Committee through the issues raised in the remainder of the draft Order.

Miss Claire Cassidy (Research and Library Services):
Good afternoon. I will cover risk assessment and management; road traffic offences; the purchase and consumption of alcohol; and penalties.

Part 3 of the draft Order covers risk assessment and management. In particular, it places a duty on a number of criminal justice agencies to assess and manage more effectively the risk posed by certain persons in the community.

Article 51 of the draft Order allows for the issuing of guidance by the Secretary of State to agencies on the discharge of any of their functions connected with assessing and managing risk. That does not add to existing statutory powers for individual agencies but places the emphasis on maximising the effectiveness of their existing statutory functions through multi-agency working.

That may raise a couple of issues. First: should individual agencies have increased statutory power dependent on the role that they play in exercising public protection? Secondly, the review of the sentencing framework in Northern Ireland highlighted the relevance of risk management and assessment in the new provisions. It outlines the importance of post-release aspects of sentencing as they apply to dangerous offenders. It is worth noting that multi-agency public-protection arrangements are not designed to require individual offenders to comply with risk-management arrangements, rather the statutory requirement is on the criminal justice agencies to co-operate to protect the public.

Part 4 of the draft Order covers road traffic offences. The draft Order contains new powers to address three areas of road traffic law: bad driving; drink-driving; and police powers. As regards bad driving, a number of provisions are proposed; for example, a new offence of causing death or grievous bodily injury by careless driving, and the introduction of more severe penalties for unlicensed, disqualified or uninsured drivers who cause death by driving.

Drink-driving is also addressed in the draft Order, which proposes tighter laws on failing to allow breath specimens to be tested and regulations regarding alcohol ignition interlock programmes. A brief explanation of those programmes can be found in the research paper.

Finally, the draft Order creates a series of police powers to seize vehicles that are causing alarm, distress or annoyance, and to regulate the use of devices used by some motorists to avoid speed detection.

The NIO carried out a consultation on road traffic and driver disqualification between November 2006 and January 2007. The consultation contained 15 proposals for modifying the law relating to motoring offences. The proposals in the consultation were designed to replicate measures that are already in place in England and Wales, and the responses that were received generally supported the proposals in the consultation, some of which have been highlighted on page 10 of the research paper. For example: whether there should be a proposal to reduce the maximum alcohol level for drivers; how the alcohol ignition interlock system is monitored; and whether there is evidence for its function as an effective deterrent.

Ms Ní Chuilín:
When someone steals a car and is joyriding or “death driving”, am I correct in saying that the passengers are not liable for prosecution?

Mr Wells:
There is a crime of allowing oneself to be carried in a stolen car.

The Chairperson:
Yes, but it is difficult to prove. The person may say that they did not know that the driver had stolen the car.

Ms Ní Chuilín:
Often, the passengers get out of the car and walk away — I have seen that happen. Is there anything that requires passengers to prove that they did not know that the car was stolen?

Miss Cassidy:
Not as far as I am aware, and nothing of that nature has been outlined in the explanatory document. I can seek clarification on that if it is necessary.

The Chairperson:
Perhaps that could be clarified. It is difficult to prove such an offence, and it may be difficult to create an alternative offence that deals with that problem, which is perhaps the reason that it is not included. It would be worthwhile asking the NIO whether it has considered that issue, but it may be a deliberate omission because of the complications involved.

Mr Wells:
It is similar to the Assets Recovery Agency; when the agency seizes goods, people must prove that they obtained those goods legitimately. The lawmakers would be loath to go down a similar route by saying that a person must prove that he or she did not know that a car was stolen. A couple of years ago, there was a high-profile case in Ballynahinch, and the people involved were not touched because they claimed that they did not know that the car was stolen. It is difficult to find a form of words to prosecute someone in that circumstance.

Mr A Maginness:
The comparison with the Assets Recovery Agency is not analogous, because it requires a different standard of proof, which is on the balance of probabilities. That cannot be used for a criminal offence, the standard for which is beyond all reasonable doubt.

Mr Wells:
The only way people could be prosecuted would be if they admitted that they knew that the vehicle was stolen, for which an offence already exists. As much as I would love to have a form of words that would get around that, I cannot see how that could be done under the present system.

Ms Ní Chuilín:
Cars may not even be stolen but may be runarounds — cars that have been bought cheaply and that the owner may have had the brass neck to tax and insure. The car is legal, but the driver may be driving so dangerously that he or she may cause death to passengers, pedestrians or other drivers. I have seen cars being stopped by the PSNI, passengers getting out and saying that they did not know the circumstances, and walking away. I know that it is difficult to prove, and perhaps the offence is not there for a reason. However, we should ask.

The Chairperson:
The issue of legal runabouts is covered in the draft Order, so that if a car is driven as to inconvenience people and cause a nuisance, it can be stopped and the driver may be prosecuted, but I am not sure whether the passengers can be prosecuted.

Ms Ní Chuilín:
That is the point. Only the driver would be responsible.

Mr A Maginness:
Perhaps members could also consider that issue and try to clarify that point.

Miss Cassidy:
I will now move on to the purchase and consumption of alcohol. I am aware that representatives of the Department for Social Development are coming in today to brief the Committee on the purchase of alcohol.

On pages 10 and 11 of the research paper, there is an overview of the provisions contained in the draft Order. On page 11, there are a number of considerations. Should further consideration be given now or in the future to a blanket ban on alcohol in public places? How realistic would such a ban be with respect to implementation and maintenance? Are there sufficient resources to enforce such a ban adequately? The Department for Social Development commented that there was no significant demand among the public for a blanket ban on drinking in public. That was contained in the Department’s written submission to the Committee.

Penalties are included in Part 5 of the draft Order. In particular, article 89 increases the maximum penalties for certain offences, which include the possession, manufacturing or selling of knives or offensive weapons. Those include offences relating to crossbows, possessing an offensive weapon, a number of offences concerning the manufacturing, sale and unlawful marketing of knives, or selling a knife to someone under the age of 18.

In July 2006, David Hanson, the then Minister with responsibility for criminal justice, launched a public consultation paper, ‘The Law on Knives in Northern Ireland’. The consultation sought views on tackling knife crime and preventing the emergence of a knife culture in Northern Ireland. Proposals to increase the penalties for possession of knives in public were widely supported, as were increased penalties for the illegal sale of knives to underage purchasers and the sale of offensive weapons. A number of concerns, however, arose from the consultation in relation to young people and knives. Those are outlined on page 12 of the research paper, and I will highlight a couple of them briefly. Is there a need for youth education about knife crime and for a general raising of awareness in schools and families about that type of crime? It is suggested that further research be carried out to assess the attitudes of young people to knife crime. It is also suggested that a licensing regime be implemented for certain weapons, whether mandatory or voluntary.

Recent consultations — as have just been discussed — on the draft Criminal Justice ( Northern Ireland) Order 2007 have raised a number of issues, which have been briefly discussed. Further to the issues identified in the research paper, some broader considerations apply to the draft Order as a whole and may warrant further thought. For example: resource allocation for the development and enforcement of new legislation, and ensuring public awareness, which might include publicising the range of new laws and measures included in the draft Order.

The Chairperson:
Thank you for that. A number of questions have been asked, and members may want to raise others.

Mr McCartney:
My question concerns remission. The new system will remove the automatic 50% remission. Previously, remission was two thirds of a sentence. Is that now in place or does the court impose the sentence?

The Chairperson:
That is an interesting question.

Mr McCartney:
Someone who is not serving an ICS or an ECS would still have to go in front of a parole board, because they are guilty of an offence specified in schedule 1 or schedule 2 of the draft Order. Therefore, under the current system, if someone is sentenced to 10 years, he or she would be out after five years; under the old regime, he or she would have been released after having served two thirds of the sentence. Do people now serve the 10 years, after which a parole board determines when they are released?

The Chairperson:
Do you have any comment on that, Carol?

Miss C Doherty:
Paragraph 2.11 of the NIO explanatory document states:

“Chapter 3 creates revised arrangements for prisoners’ release on licence; recall to prison following breach of licence requirements; and further re-release. Offenders serving standard determinate sentences will be released on licence at a point determined by the court. For prison sentences of less than 12 months, the court will set licence conditions; for longer sentences (those of 12 months or more), the Secretary of State will set licence conditions taking into consideration the court’s recommendations. On release, offenders sentenced to custody will be placed under supervision. This new form of imprisonment will replace unconditional release at the half-way point and remove automatic 50% remission.”

Does that clear up the queries?

Mr McCartney:
It appears that people will not be entitled to be released after serving two thirds of their sentence; they will be released only when a parole board deems it appropriate.

Mr McFarland:
They would be released at the halfway point, unless a parole board decides to keep them in longer.

Mr McCartney:
They would have to go in front of a parole board to determine that.

The Chairperson:
I am not certain that that is right.

Mr McFarland:
Can the last sentence be read out again?

The Chairperson:
“This new form of imprisonment will replace unconditional release at the half-way point and remove automatic 50% remission.”

Raymond is referring to a parole board.

Mr McCartney:
It seems that someone can go in front of the judge.

Ms Ní Chuilín:
I think that it is the judge who sets the amount of remission.

The Chairperson:
The NIO explanatory document states:
“Offenders serving standard determinate sentences will be released on licence at a point determined by the court.”

Therefore, that means that it will be the judge who specifies the amount of remission. A judge could sentence someone to eight years and state that remission would be after four years’ imprisonment — 50% remission. Equally, the judge could state that remission would be after six years’ imprisonment. That is my understanding.

Mr McFarland:
Will you read the section that mentions the halfway point of a prison sentence?

Miss C Doherty:
“This new form of imprisonment will replace unconditional release at the half-way point and remove automatic 50% remission.”

Mr McFarland:
No, there is another bit.

Miss C Doherty:
“On release, offenders sentenced to custody will be placed under supervision.”

The Chairperson:
Therefore, everyone who is sentenced to a custodial sentence will be placed under supervision after their release.

Mr McFarland:
I thought that something was mentioned about the halfway point of a sentence. Previously, prisoners were automatically entitled to 50% remission. This draft Order means that they are still entitled to 50% remission but that it will be up to a parole board to decide whether they should be released.

The Committee Clerk:
My understanding of the issue — from my briefings with Paul Goggins and the NIO — is that there will not be automatic 50% remission, but prisoners can still be released at the halfway point of their sentence.

The Chairperson:
However, according to the NIO explanatory document, that is predetermined by the judge.

Miss C Doherty:
That is my understanding of it.

The Chairperson:
Therefore, it is the judge who will determine the remission.

Mr McFarland:
Do you mean that the judge will determine at what point prisoners are eligible for remission?

The Chairperson:
Yes, I do.

Mr McFarland:
Otherwise, the parole board’s role would be negated. Under the current system, a judge can hand down a minimum sentence. However, if he does not specify a minimum amount of time to be served, 50% remission is applied, regardless of whether the person is considered to be a threat.

As I understand it, the difference now will be that prisoners will be eligible for release halfway through their sentence, but they would have to go before a parole board to determine whether they should be released.

Miss C Doherty:
Yes; certain conditions have to met, so it is not automatic.

The Chairperson:
I am not sure about that.

Mr McFarland:
Will you clarify that?

The Chairperson:
We can ask for that point to be clarified. Paragraph 2.11 of the explanatory document states that the release is:

“on licence at a point determined by the court.”

I understand that to relate to the term of the sentence. However, I could be wrong, and we need to clarify that point and return to it. Either way, it seems that the parole board will have a great deal of work to do, for which it must be properly resourced.

Mr McFarland:
I am not sure that we are being robust enough on knife crime. Society should take a dim view of people who go out socially with a six-inch knife attached to their belts. People claim that they do so because they may encounter someone else who is carrying a knife, and, therefore, they may have to defend themselves.

The proposed new penalties are more robust than previously and increase the maximum sentence for certain knife crimes to 12 months’ imprisonment. Therefore, a young person who fears for his or her life when out at the Odyssey or wandering around Belfast will make a judgement call on whether the chances of being caught with a knife and receiving a 12-month prison sentence outweigh the chance of being stabbed in the chest. My argument is that that is not a great deterrent when trying to dissuade people from going out carrying knives.

The draft Order goes on to detail penalties for selling knives. However, most of the knives that are carried or used to commit crimes are kitchen, or similar, knives that can be bought anywhere. I understand that the aim is to move away from a knife culture, and people are horrified when they see large knives with serrated edges. However, most of the knives that police find on people when they are stopped are smallish kitchen knives that have been borrowed from granny or are worn down and have been thrown out.

The question is whether the penalties are sufficiently robust. We must send out the message to young people that if they go out for the night and are discovered to be carrying a knife in their pocket, they will be locked up . If the threat is that they will be sentenced to prison for 12 months and released after six months — but that the alternative to carrying a knife is to be stabbed — my guess is that that is not a great deterrent.

I understand that the draft Order also mentions a four-year sentence, and presumably that applies when knives are used in a fight. However, my point is that there is an opportunity to send out a really strong message to people that they do not want to go out socially carrying a knife because, if caught, the courts will hammer them. Unless we are as robust as that, we will not make any impression on people who will head out for drinks on Christmas Eve with knives in their belts.

The Chairperson:
I take your point, I think, about sending out a strong message to the public.

Mr Wells:
Will we relay that point to the NIO?

The Chairperson:
We will take note of Alan’s point and come back to it. We are not yet at the stage of preparing a response. If the Committee agrees to sending that message —

Mr McFarland:
Is it worth asking the Northern Ireland Office to explain in a bit more detail exactly why it has chosen not to take this opportunity to make that strong pitch? Knife crime and similar issues are discussed on ‘The Stephen Nolan Show’ on the BBC. From listening to members of community groups who contribute to the programme, knife crime is a major problem in society that everyone wants to be addressed. I am worried that the draft Order does not do so.

The Chairperson:
The draft Order doubles all the sentences.

Mr McFarland:
Yes, but people are faced with making a judgement call when they go out for the night and may face someone who is carrying a knife. The risk of injury will carry more weight than a possible six-month prison sentence that could be spent watching television. If people know that they will be in big trouble if they get caught with a knife, there is more chance of their deciding that they will leave it at home.

The Chairperson:
We will note that and come back to it in due course when we are deliberating on our written response. I thank Carol and Claire for their helpful contribution. I am sure that you will continue to service the Committee.

The Committee will now have a briefing from officials from the Department for Social Development, Mrs Linda MacHugh and Mr Gary McAlorum, on alcohol consumption in designated public places in the draft Criminal Justice ( Northern Ireland) Order 2007. You are both very welcome. We have received a letter from the Minister for Social Development, Margaret Ritchie, explaining the provisions in the draft Order, and that letter has already been copied to members. I thank the departmental staff for attending at very short notice. They will brief the Committee on the various proposals, and members can then ask questions.

Mrs Linda MacHugh (Department for Social Development):
Thank you for the opportunity to brief the Committee on the drinking-in-public provisions contained in the draft Criminal Justice ( Northern Ireland) Order 2007.

The issue of drinking in public has already been raised with the Committee for Social Development, which has agreed to consider the matter further once the outcome of the consultation is known. I am sure that both the Minister for Social Development and that Committee will be interested in this Ad Hoc Committee’s recommendations. Thank you for considering it.

Work in the area of drinking in public has been ongoing for some time — certainly well before the restoration of devolution. As policy responsibility currently rests with Margaret Ritchie, the Minister for Social Development, the proposed measures that are the outworkings of the policy development go beyond the scope of the current by-laws and the scope of our Department. It also involves reserved matters in the criminal justice field. For that reason, it was decided that the draft provisions should be progressed by the Northern Ireland Office in the draft Order. The Minister has been working closely with her NIO counterpart, Paul Goggins, in recent months to finalise the proposals that are now before the Committee. It may help if I set out the context of the proposed measures before considering them in some detail.

The need for the review into current drinking-in-public by-laws stems from public and political concern about their effectiveness. The purpose of the current by-laws is to control nuisance drinking in public places and the antisocial behaviour that can be associated with that. However, the current provisions are widely regarded as inadequate. There are no powers to remove alcohol from people in designated places — often the source of the problem in the first place. That can lead to an offender simply carrying on drinking in nearby locations. In light of that, a review was commissioned to consider how more targeted measures could be introduced to deal with drinking in public and the associated public nuisance that that causes.

The policy proposals on which we consulted related to restrictions in designated areas. Respondents were in favour of designating known problem areas in which controls could apply. No strong demand for a blanket ban on drinking in public came from that consultation process. During the initial consultation in 2003, there was substantive support for introducing fixed penalty notices and providing for the removal of alcohol. In light of consultation comments, it was subsequently proposed to introduce primary legislation to permit the seizure of alcohol and provide a fixed penalty scheme. Those proposals were largely welcomed by district councils during consultation on the more detailed policy measures that happened in 2004.

Subsequently, several changes were made to reflect consultation comments, including extending the provisions to those under 18 years of age, increasing the level of the fixed penalty notice to £50 and giving further consideration to the role of councils in on-the-ground enforcement.

Margaret Ritchie and Paul Goggins agreed that the new measures should deal with the problem on the spot by providing powers for the removal of alcohol and for the issuing of fixed penalty notices. They anticipate that the power to remove alcohol should enable difficulties to be dealt with swiftly and, it is hoped, without the need to resort to either fixed penalty notices or prosecution. Members may wish to note that such powers are stronger than those applied under by-laws in Scotland and the Republic of Ireland, and are similar to powers that exist in England and Wales.

In the proposals on drinking in public and public provisions, there are two new strands — on the offence and on enforcement powers. It will no longer simply be an offence to drink alcohol in a public place. Rather, the focus will be targeted on dealing with antisocial behaviour, and much stronger measures are proposed to tackle such behaviour. The draft Order provides the police with the power to require people to stop drinking and/or to surrender alcohol in designated places. Under such legislation, it is anticipated that a staged approach will be adopted. If trouble is being caused or is envisaged, people will be asked to stop drinking or to surrender alcohol. If they do not comply, the police will be able to issue a £50 fixed penalty notice or opt for prosecution, with arrest as a last resort. At all times, the police will have full discretion to require a person to stop drinking or to surrender alcohol.

The Minister for Social Development believes that district councils’ involvement in on-the-ground enforcement is a matter that would be best considered in more detail after decisions on local government structures have been taken, and in the context of the review of public administration’s consideration of their involvement in wider licensing functions. In the meantime, councils would continue to designate the areas in which the new provisions would apply and take forward any prosecutions. Under the new system, before the designated areas in which the drinking-in-public provisions will apply are finalised, councils would also have a statutory obligation to consult the police.

Although I have provided an overview of the key policy measures, it may be helpful if I run through them in more detail. In areas designated by councils, article 67 of the draft Order would give the police the power to require individuals to stop consuming, or to surrender, alcohol. Failure to comply would attract, on conviction, a maximum penalty of £500. In the first instance of a conviction, the penalty would be capped at £50.

Article 68 provides for the fixed penalty notice scheme and places an upper limit on the amount of the fixed penalty. As I said, that will initially be set at £50. That article will also provide for a variation in the age at which fixed penalty notices can be issued. Initially, that would be set at 16 years of age. If a fixed penalty notice is paid within 14 days, the individual would not then be prosecuted.

Article 69 of the draft Order sets out the provisions for designating those areas to which the new controls on drinking in public would apply. Under that provision, councils would be obliged to consult the police and must only designate areas in which there is alcohol-related nuisance or disorder, or in which such behaviour could be anticipated. Those provisions largely reflect existing designating procedures. However, given that departmental approval would no longer be required, the process would be slightly quicker.

On commencement of article 70, the new provisions would come into effect when district councils next designate areas, or after three years — whichever occurs first.

I hope that that has provided members with an overview of the key measures, the rationale behind them and the views on which they have been based. It is the Minister for Social Development’s wish that more effective and targeted measures are introduced to deal with antisocial drinking in public at source. Our Minister and her NIO counterpart wish to strike a balance so that problematic public drinking can be tackled on the spot through providing the police with appropriate powers, while also encouraging people to enjoy public places more fully.

I will now move on to the separate area of test purchasing.

Mr Wells:
I am disappointed that the option of a blanket ban on outdoor drinking has been ruled out. Why would anyone be drinking legitimately at 2.00 am on a Saturday morning on the streets of Kilkeel?

Mrs MacHugh:
A blanket ban would apply to all areas at all times.

Mr Wells:
Why would anybody have legitimate reason to drink on the streets at any time? The last time we discussed the issue, someone said that they wanted to enjoy wine and cucumber sandwiches outdoors. I do not see too many people drinking Chardonnay and eating cucumber sandwiches in Castlewellan on a Saturday night.

Mrs L MacHugh:
No. However, they could be in Castlewellan Forest Park on a Sunday afternoon.

Mr Wells:
We are talking about public streets and squares. The legislation could be refined to specify that it applies to thoroughfares rather than forest parks.

Mrs L MacHugh:
The way in which councils tend to designate areas almost imposes a blanket ban on all urban areas. The Department countersigns the by-laws and, typically, in any town all the major thoroughfares, public parks, public squares, bus stations, schools, and even the grounds of health centres and any areas where youths might gather are designated as alcohol-free zones.

Mr Wells:
The fact that councils must go to the expense of doing that shows the extent of the problem. However, if a band parade follows a long route, part of which goes through an area that is not designated as an alcohol-free zone; neither the police nor the council staff would be able to enforce the no-drinking provision. If signs are vandalised and cannot be seen, people use that as a defence.

Mrs L MacHugh:
The other issue concerns the resources that would be required to enforce a blanket ban. The PSNI already has concerns about the extent to which councils designate areas, because that spreads its resources very thinly and makes those areas difficult to police. The PSNI still has some concerns about the proposals that are on the table. However, the Minister responsible for policing, Paul Goggins, is fully behind the changes.

The police say that the councils should be responsible for enforcement. I cannot speak for the PSNI as regards a blanket ban, but officers have indicated that they would have serious concerns about their ability to enforce it.

Mr Wells:
In other words, people can cause a nuisance in an undesignated area, and residents simply have to put up with it. Frankly, on Friday, Saturday and Sunday nights in towns in my constituency, if it were not for alcohol abuse, the police would be redundant. Ninety per cent of their work is alcohol-related. The other night, I was sitting in the casualty unit of the local hospital — people there would be twiddling their thumbs if it were not for the effects of drink. Would there not be greater clarity if people knew that drinking in any public place was illegal? Pub and restaurant licensees could be given the option of asking for derogation in the immediate vicinity of their premises. Would that not provide clarity, rather than having councils constantly sticking up signs, and drinkers moving down the street to areas beyond the alcohol-free zones and continuing to drink?

Mrs L MacHugh:
Again, I cannot speak for the PSNI, but some problems at night are in the immediate vicinity of pubs, particularly after closing time when people spill out onto the street with glasses. When people congregate in such areas, it could be difficult to police them and force them to move on.

Mr Wells:
When landlords apply for licenses, the councils could remove that derogation, and there would no longer be permission for on-street drinking. The Department is not taking the issue seriously enough. Why is there an age limit of 16? Frankly, in the real world, many street drinkers are much younger than 16. Why do you not reduce the age limit?

Mrs L MacHugh:
The proposal is that that would be age limit for receiving a fixed penalty fine. However, people below that age could be asked to stop drinking; they simply would not receive a fixed penalty. Also, the PSNI have specific legislation to deal with underage drinking, which it can enforce.

The Chairperson:
If I may interrupt you, can the police prosecute an underage person who is drinking anywhere, including in a non-designated area? Would you answer that, Mr McAlorum?

Mr Gary McAlorum (Department for Social Development):
The Confiscation of Alcohol (Young Persons) Act 1997, which extends to the whole of the UK, allows the police to confiscate alcohol from persons under 18 years of age in any area. Refusal to comply would constitute an offence, for which the person could be prosecuted.

The Chairperson:
Therefore, the law states that the police can take action against anyone under 18 who is drinking in public. Can they seize the alcohol?

Mr McAlorum:
Yes.

The Chairperson:
The draft Order proposes that people drinking in designated areas will receive a fixed penalty. What else does it propose?

Mr McFarland:
It proposes that the alcohol can be seized.

Mrs L MacHugh:
The police cannot seize the alcohol at present, and a scenario might arise in which the underage people in a group of drinkers would be treated differently to the over-18s, and where the over-18s would be able to go round the corner and start drinking again. The intention is to nip the problem in the bud by seizing the alcohol. If that does not work, a fixed penalty could be imposed and the offenders could be prosecuted. If that fails, and a public offence would be about to be caused, the offender could be arrested. Therefore, there would be a stepped response.

Mr McFarland:
Mr Chairman, is 10 the minimum age at which a child can be arrested by the police? Are children of that age, and younger, brought to their parents?

Mr McAlorum:
That is correct.

Ms Ní Chuilín:
They can prepare the ground for an arrest or for an anti-social behaviour order. Are you looking for the minimum age to be lowered, Alan?

Mr McFarland:
I am interested in this matter because there was a problem in Bangor in which a group of children aged between eight and 14 were drinking in public, and where the older children were encouraging the younger children. The police had a problem because they were able to deal with some of the group, but the remainder merely went back to their mothers. There was confusion about the minimum age.

Mrs L MacHugh:
Sixteen is the proposed age at which fixed penalties will be imposed. In England, fixed penalties can be imposed on children as young as 10, but the parents would be involved in those cases.

The Chairperson:
The law assumes that people are working, or are in receipt of some sort of benefit and that therefore a fixed penalty would be an effective punishment.

Mr Wells asked why a blanket ban was not considered, and we discussed that at our last meeting. According to the Minister’s letter — and your comments today — there was no significant demand for a blanket ban on drinking in public.

Mr Wells:
Was it offered?

The Chairperson:
That is what I want to tease out. It has been said that there was not a significant demand for a blanket ban; is that based on a survey of the councils?

Mrs L MacHugh:
All councils were asked to comment. We received 16 responses, of which four asked for a blanket ban, and the remainder did not.

The Chairperson:
So it was a minority. Were councils asked directly whether they wanted a blanket ban?

Mrs MacHugh:
I do not think that it was asked directly. They were asked to comment on whether they were in favour of the designation of known problem areas; 12 said that they were, and four suggested that we should consider a blanket ban.

The Chairperson:
Therefore, it is based on that survey.

Ms Ní Chuilín:
Chairman, I have to leave. Do you have a quorum?

The Chairperson:
Yes. If there is a question you would like to be asked, please mention it to Raymond McCartney.

Mr Wells:
Down District Council was consulted on this issue and did not consider a blanket ban because it was not on the table.

The Chairperson:
That is why I asked if councils were directly asked whether they wanted a blanket ban. Mrs MacHugh said that some councils volunteered their opinion on a blanket ban as a response to the consultation, but the specific question was not put to councils. It is an issue that the Committee can discuss and return to. Last week, we suggested to the NIO officials that they look at that point and come back with a response.

Mrs L MacHugh:
The policy direction that we took was to deal more effectively with the problems where they were occurring.

The Chairperson:
You are talking about the problem areas?

Mrs L MacHugh:
Yes; and to be more effective with actions on the ground in individual situations that may occur. The idea was to become more focused. As I have said, the PSNI has already said that it feels that its resources are too stretched because of the wide designation that councils tend to take. Indeed, the PSNI has said that drinking in public is not a priority for it.

The Chairperson:
We will have an opportunity to ask them about that.

Mr Wells:
Try asking the little old ladies who live in town centres and who must live with such situations.

The Chairperson:
That is the obvious repost to that particular comment.

Mr Wells:
We have talked about people who cause apprehension by drinking; in my constituency of South Down there is a problem with people who just drink — who just sit all day in the squares in the middle of the summer. They do not shout, scream or threaten people; they just drink, but no one will go near those squares. Are we saying that an offence must be committed before the police may move in on such a situation?

Mrs L MacHugh:
That would be up to police discretion. If, by being in a square, those people are putting others off going into the square, one could argue that that is a public nuisance.

Mr McFarland: 
If it is a designated non-drinking area, and people are drinking in it then presumably — [Interruption.]

Mr Wells: 
Such folk are smart enough to move to an area that is not designated, and the council is forced to chase them around the town. That is reason that the situation is bureaucratised: people find new places to drink and the council must put up more signs and go through more regulations. If there were a blanket ban there would be no problems.

The Chairperson:
If one were to go to the courts and say that someone had been sitting in a square all day and was putting people off going there, the judge would ask if that could be proved. As that type of nuisance is difficult to prove, Mr Wells is arguing for is a more defined situation in which people drinking in public are causing a problem because it is off-putting to others and causes disorder. That is the problem that people are faced with, which is unpleasant, at least. Of course, there should be some discretion written into the law for those who are not disturbing public order; people who may be having a picnic — [Interruption.]

Mr Wells: 
At 2.00 am in Kilkeel Square.

The Chairperson:
No, I am not talking about that type of situation.

Mrs L MacHugh:
At present, it is illegal to sit in Castlewellan Forest Park on a Sunday afternoon and have a bottle of wine with a family picnic. I signed the by-laws . [Laughter.]

As I live in the Ballynahinch area I am starting to wonder what I will do at the weekends.

The Chairperson: 
I thought you were going to say that you had been caught. [Laughter.]

Mrs L MacHugh: 
In Castlewellan Forest Park at night there can be difficulties arising due to young people congregating to drink, and I understand the council’s rationale for the blanket ban, but it would be a 24-hour blanket ban that would cover every scenario. I accept that there are real difficulties at night in towns and cities, which one can see when driving though them.

The Chairperson: 
A qualifying statement such as “with reasonable excuse” might cover it.

Mr Wells: 
Drinking that is ancillary to another activity may be a suitable qualification, as the main purpose of drinking in public places after dark at the weekend is to get drunk and cause as much trouble as possible. A form of words could be found that would allow a man to have a drink with his cucumber sandwiches on a Sunday afternoon, but the determination to explore that as an option does not appear to exist.

Mrs L MacHugh: 
The process that we have gone through has been lengthy, and we have had a number of iterations of the policy. Ultimately, whatever is introduced must be policed. If the PSNI is not behind the policing of the policy, we will have real difficulty.

The Chairperson:
We must query that matter with the police. I do not doubt what you have said, but we must ask the PSNI about that. The solution may be not to eat cucumber sandwiches.

Mr Wells:
We have not even dealt with parades, where drink is a terrible problem. Litter gets strewn across streets and some individuals cause damage. The police must be given powers to enforce a ban on alcohol throughout a parade’s route, even it that route goes outside designated no-drinking areas.

Dr Farry:
Do the police have the power to seize alcohol at parades? If so, does that power refer to bottles and cans that have been opened? I appreciate that the police can seize sealed alcohol from under-18-year-olds, but can they seize it from those who are over 18?

Mr McAlorum:
Yes, they can seize alcohol from both age groups in designated no-drinking areas.

Dr Farry:
During parades, people drink on the streets but then go into licensed premises to drink. I appreciate that that intersects with the licensing review to a certain extent. Alan McFarland and I are familiar with the situation in Bangor on Easter Tuesday when there was alcohol-fuelled violence and public disorder following a junior Orange Order parade. The difficulty was that the people involved then went into licensed premises to drink. Licencees allow that to happen, but when such activities contribute to wider societal costs, with policing, resources, damage to property and people being put off going into town centres, it becomes a problem. Can the police apply to the Magistrate’s Court to seek the closure of licensed premises in a designated area?

Mrs L MacHugh:
Yes. However, that power has to be exercised by the Secretary of State at the request of the police. It may be used in certain situations, such as when public disorder becomes uncontrollable.

Dr Farry:
The difficulty is that the police must apply 48 hours in advance of a parade. They must have the foresight to do that. However, if there are ongoing problems, they do not have the power to direct the closure of premises to nip the problem in the bud.

The Chairperson:
Do you have knowledge of that, Mrs MacHugh?

Mrs L MacHugh:
Yes. There is provision to shut down premises in advance or when problems arise. We considered that matter under the review of liquor licensing, and we proposed that we would introduce a penalty system whereby repeat offences would clock up points. After a certain number of points, premises would either be closed temporarily or licences would not be renewed.

Dr Farry:
My understanding is that that situation applies where there is disorder within premises and specific to those premises. In general, where a group of people are intent on causing problems, the police may seize the alcohol. However, those people can move on to bars and get tanked up before emerging to cause violence. The law does not cover such a scenario. Basically, there is a major problem in that publicans know the consequences of people consuming vast amounts of alcohol and then going out on to the streets.

Mrs L MacHugh:
It is difficult to legislate when someone has left a pub or an off-licence. However, it is illegal to serve anyone on licensed premises who is visibly drunk. It sounds bizarre, but that is the law as it stands. The onus is on the proprietor to ensure that he or she is not adding fuel to the fire.

However, the question asked is whether the publican should be responsible for his customers after they leave his custom.

Dr Farry:
I am suggesting that, in extreme circumstances, and to be used sparingly, the police must have the ability to require the closure of all licensed premised within a designated area, even if trouble has not happened but where a group is moving around the town and is likely to use all the premises. In such circumstances, the police need to have extraordinary powers to shut everything down.

Mrs L MacHugh:
In England, alcohol disorder zones are being considered in which a strip of pubs and licensed-premises clubs will pay additional rates for additional policing and the police may have powers to close premises down. That was introduced at the same time as the introduction of 24-hour drinking, which was not in the package that David Hanson proposed. Margaret Ritchie is considering the full range of the package that David Hanson proposed and she will consider the way forward in the new year. This issue is outside the confines of what is being discussed today, but it is interesting nevertheless.

Mr McCartney:
What is important is how the impact is measured. When the new provisions are put in place, will the number of fixed penalties issued be analysed? I do not want to talk about public perception and sound as though I am talking for everyone, but sometimes a law can be introduced merely to show that a problem is being addressed.

For example, I would get a fixed penalty notice if I were to park on a double-yellow line. Given the number of fixed penalties notices that are issued for parking offences, it would focus my mind and make me think twice the next time I see a double-yellow line.

Therefore, if we are told this time next year that there have only been 30 fixed penalties for on-street drinking but 100,000 for parking; that would be a clear signal as to where the priority lies. The PSNI, possibly from a logistical perspective, says that it cannot police drinking on the streets. We would be left with good, well-intentioned laws but the problem would still exist.

A local example is that Derry’s walls were a favoured spot for on-street drinking. That area was cleared but the priority shifted to a different area. People congregated in housing estates, which created a bigger problem. Those who lived in those areas asked why people should not be allowed to drink at the walls as they were doing no harm and were away from their front doors. How can we make an impact? Fixed penalties would be one way of showing that there is an outcome to the provisions on drinking in public.

Mrs L MacHugh:
There is only so much that can be legislated for in all of those issues: ultimately, there is a huge education issue. When one hears that parents not only allow their children to drink in parks, but buy the drinks for them from the off-licence and drop them off at the park, one wonders where the real problem lies. The issue is very complex.

The Chairperson:
We have a drink culture, and we must deal with the problem of educating people. I know that you have one other issue to deal with, and that it is fairly brief. It is the provision to permit someone to direct a minor to purchase alcohol being included in order to test the system. Is that the provision?

Mrs L MacHugh:
Yes. The licensing provisions do not allow anyone under 18 years of age to buy alcohol. Therefore, it is against the law for the PSNI to carry out a market test to see whether underage children can buy alcohol successfully. We have looked at a system in England, Wales and Scotland in which, under police supervision, it is lawful for someone to try to purchase alcohol as part of such a test.

The Minister for Social Development is in favour of this, because it deals with children’s welfare. Parental consent would be required for young people to take part. Since the test was introduced in England and Wales, there has been a dramatic fall in sales of alcohol to underage people, from 50% in 2004 to 15% this year. It is an effective deterrent.

The Chairperson:
That particular statistic is very interesting.

Mrs L MacHugh:
The test would have to be very carefully controlled, because the welfare of the young person carrying it out has to be taken into consideration. A police officer would be in plain clothes in the licensed premises at all times, looking at what is going on. It would be an operational matter for the PSNI. Our interest is that our legislation would have to be amended.

The Chairperson:
It would allow the police to carry out that operation lawfully.

Mr Wells:
I thoroughly support the idea. It would send quakes of fear among off-licence owners, because the deterrent threat of prosecution would be enormous.

It is noticeable that every other type of retailer in Northern Ireland has its name plastered in big red and yellow letters on its bag, except one. Off-licences use the ubiquitous blue bag. Has the Department given any thought to forcing off-sales outlets to put messages on the bags, such as “This alcohol was bought at Joe Smith’s off-licence, Main Street”, to help the police identify those who are selling alcohol to underage people? I would go further, and introduce something even more revolutionary. Has the Department thought of forcing off-licences to put a sticker on tins saying where the alcohol was purchased, or some means of identification that would enable it to be traced? Every off-licence from Limavady to Kilkeel uses the same colour of blue bag; they are obviously very shy about advertising their presence. However, one can see the tins lying in the street the following morning. Were any such measures proposed when the Department was considering the legislation?

The Chairperson:
Items of alcohol are bar-coded in the United States so that they can be tracked back to the point of purchase. That might be an idea to consider.

Mr Wells:
The technology makes it perfectly feasible to do that.

The Chairperson:
It is an interesting idea.

Mr McAlorum:
It was not considered in the context of this piece of legislation.

Mr Wells:
Could it have been included in these provisions?

Mrs L MacHugh:
We would have to decide whether it was a trading issue, or whether it was about supplying alcohol. If a retailer trades solely in alcohol, he is obviously supplying alcohol, but there could be issues around trading standards. I am debating in my own mind whether the matter would fall within our remit.

The Chairperson:
It could fall within both.

Mrs L MacHugh:
It could.

Mr McFarland:
In practical terms, breweries would have to apply the stickers or the bar codes. Therefore, how would a brewery know whether a particular consignment of six-packs of lager is going to “Jimmy’s Wine Mart”? The other difficulty is that if a consignment went to an off-licence, someone there would have to be employed to apply the stickers. The bag is a much more practical option, because the retailer would have to have his name on it. However, would Granny Jones, having bought her half bottle of gin, wish to walk down the street advertising the fact that she had bought it?

Mr Wells:
She could put it in her handbag.

Mrs L MacHugh:
The same would have to apply to those who buy alcohol by the case.

The Chairperson:
One could use another bag and get somebody else into trouble. However, the idea is worth considering.

Mr McCartney:
There are voluntary schemes.

The Chairperson:
There are.

Mrs L MacHugh:
To be fair, the licensed trade is doing a great deal of work. The Challenge 21 campaign, either through the Federation of the Retail Licensed Trade Northern Ireland or with local Chambers of Commerce, is looking at various schemes to encourage off-licences to challenge people who look like they are under 21 years of age.

However, that scheme relies on the goodwill of the trader. It also relies on older people not purchasing alcohol for young people — that would be very hard to legislate for.

The Chairperson:
Does that conclude your evidence, or would you like to add anything else?

Mrs L MacHugh:
That is all. If the Committee wants us to return after its deliberations, we would be happy to do so.

The Chairperson:
Mrs MacHugh and Mr McAlorum, I thank you for coming. Your contribution has been very interesting and helpful.