Report on The Draft Criminal Justice (Northern Ireland) Order 2007

AD HOC COMMITTEE ON THE DRAFT CRIMINAL JUSTICE (NI) ORDER 2007

Report on the 
Draft Criminal Justice (NI) Order 2007

TOGETHER WITH THE MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE
AND WRITTEN SUBMISSIONS RELATING TO THE REPORT

Ad Hoc Committee on the 
Draft Criminal Justice (NI) Order 2007

The Committee was established by resolution of the Assembly on Monday 19 November 2007 in accordance with Assembly Standing Order 48(7). The remit of the Committee was to consider the proposal for a Draft Criminal Justice (Northern Ireland) Order 2007 and to report to the Assembly by 28 January 2008.

The Committee had eleven members, including a Chairperson and Deputy Chairperson. Its quorum was five. The membership of the Committee was as follows:

Mr Alban Maginness, Chairperson
Mr Raymond McCartney, Deputy Chairperson

Mr Alex Attwood Mr Alan McFarland
Ms Carál Ní Chuilín Mr John O’Dowd
Dr Stephen Farry Mr Jim Wells
Mr Danny Kennedy Mr Peter Weir
Mr Nelson McCausland

Mr Danny Kennedy - was unable to attend meetings as the dates mostly clashed with meetings of the Committee for OFMDFM which he chairs.

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://archive.niassembly.gov.uk

Table of Contents

BACKGROUND TO THE REPORT

Proposed Draft Criminal Justice (NI) Order 2007

Establishment and Remit of the Ad Hoc Committee

Proceedings of the Committee

Acknowledgements

OVERVIEW OF THE PROPOSED DRAFT CRIMINAL JUSTICE 
(NORTHERN IRELAND) ORDER 2007

COMMITTEE’S CONSIDERATION OF THE PROPOSED DRAFT 
CRIMINAL JUSTICE (NI) ORDER 2007

General Comments

Sentencing and Release on Licence Arrangements

Curfews and Electronic Monitoring

Supervised Activity Orders

Parole Commissioners

Risk Assessment and Management

Probation Service

Prison Service

Lack of an Open Prison Facility

Other Prison Issues

Road Traffic Offences

Alcohol Interlock Ignition Schemes

Seizure of Vehicles Causing Alarm, Distress or Annoyance

Test Purchases of Alcohol

Alcohol Consumption in Designated Public Places

Prison Security and Offences

Live Links

Legal Aid

Changes to the Police and Criminal Evidence (NI) Order 1989

Penalties

Driving Disqualification for any Offence

Proving Execution of Arrest Warrants

Anti-Social Behaviour Orders

Youth Justice

Publicising the Facts and the Changes

Resourcing the Implementation of the Changes

Appendix 1 - Minutes of Proceedings

Appendix 2 - Minutes of Evidence

Appendix 3 - Written Submissions and other Correspondence considered by the Committee

Appendix 4 - List of Witnesses

Background to the Report

Proposed Draft Criminal Justice (NI) Order 2007

1. On 8 November 2007 the Northern Ireland Office published for consultation a proposed Draft Criminal Justice (Northern Ireland) Order 2007 and asked for comments on the proposals by 31 January 2008.

2. In accordance with Section 85 of the Northern Ireland Act 1998, Mr Paul Goggins MP, on behalf of the Secretary of State for Northern Ireland, referred the Draft Order to the Assembly for its consideration.

3. Copies of the Draft Criminal Justice (Northern Ireland) Order 2007 and the accompanying Explanatory Document issued by the Northern Ireland Office are accessible on the NIO’s website at www.nio.gov.uk

Establishment and Remit of the Ad Hoc Committee

4. On 19 November 2007 the Assembly agreed, in accordance with Assembly Standing Order 48(7), to establish an Ad Hoc Committee with a remit:

to consider the proposed Draft Criminal Justice (Northern Ireland) Order 2007 and to submit a report to the Assembly by 28 January 2008.

5. This is a Report made by the Ad Hoc Committee and it describes its work during the period 22 November 2007 to 21 January 2008.

Proceedings of the Committee

6. At the Committee’s first meeting on 22 November 2007, the Committee elected Mr Alban Maginness as temporary Chairperson. The Committee agreed a schedule of further meetings and a list of organisations that should be invited to give oral evidence to the Committee. The Committee also agreed to place a Public Notice in the four main newspapers, inviting written submissions on the proposals from interested parties.

7. At its meeting on 28 November 2007 the Committee elected Mr Alban Maginness as permanent Chairperson and Mr Raymond McCartney as Deputy Chairperson. During this meeting the Committee was given an overview of the Draft Order by officials from the Northern Ireland Office (NIO).

8. At its meeting on 5 December 2007 the Committee was given a background briefing on the draft legislation and the various consultations which had preceded it by Assembly Research staff.

9. The Committee held eight meetings on the following dates: 22 and 28 November 2007; 5, 12 and 18 December 2007; 9, 16 and 21 January 2008. The Minutes of Proceedings for these meetings are included at Appendix 1.

10. In the Course of its proceedings, the Committee took evidence from the following organisations:

• The Northern Ireland Office
• The Department for Social Development
• The Probation Board for Northern Ireland
• Criminal Justice Inspection Northern Ireland
• The Chairperson of the Life Sentence Review Commissioners
• The Department of the Environment
• The Northern Ireland Association for the Care and Resettlement of Offenders
• The Northern Ireland Human Rights Commission
• The Northern Ireland Prison Service
• The Police Service of Northern Ireland

11. A complete list of those representatives who gave evidence to the Committee is included at Appendix 4.

12. The Minutes of Evidence for these meetings are included at Appendix 2.

13. Written Submissions received by the Committee are attached at Appendix 3.

Acknowledgements

14. The Committee would like to express its sincere thanks to the representatives of all the organisations listed above who provided written and oral evidence, in some cases at short notice. That evidence was very beneficial to the Committee’s understanding of the wide range of provisions within the proposed Draft Order and the implications for our criminal justice agencies and our wider society. The Committee would also wish to record its appreciation of the assistance provided by Ms Carol Doherty and Ms Claire Cassidy, Assembly Research and Library Services.

Overview of the Proposed Draft Criminal Justice (Northern Ireland) Order 2007

15. This overview of the proposed Draft Order (the Order) has been adapted from the NIO’s Explanatory Document.

16. A full copy of the Order and the accompanying Explanatory Document can be accessed on the NIO website www.nio.gov.uk

17. The Order is divided into six separate Parts which are outlined below.

Part 1 -Introductory

18. This Part provides for the title, commencement and most interpretation provisions in the Order. In overall terms it allows for different provisions to be commenced at different times and in different ways. Provisions will commence by order of the Secretary of State and some within one month of the Order being approved by Parliament.

Part 2 – Sentencing

Dangerous Offenders

19. Chapter 1 provides for the introduction of new public protection measures for the sentencing and assessment of dangerous violent and sexual offenders. Dangerousness is assessed as whether there is a significant risk of serious harm to members of the public by the commission of further such offences. Serious harm means death or serious personal injury whether physical or psychological.

20. 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. Unless revoked, the licence remains in place for life. The “tariff” must be at least two years.

21. A dangerous offender who has been convicted of a specified sexual or violent offence for which the maximum penalty is less than 10 years will be given an ECS. This sentence will be a determinate sentence of at least one year and offenders will become eligible for release at the half way point. In addition to the custodial part, courts will set extended supervision periods of up to five years for violent offenders and eight years for sexual offenders.

22. When considering these public protection sentences, dangerousness will be assessed by the court. Dangerousness assessments will be based on reports specifically prepared for that purpose by specialists including probation officers, psychiatrists or psychologists.

23. New arrangements are created for prison sentences and for prisoners’ release on licence; recall to prison following breach of licence requirements; and further re-release.

24. Release from the public protection sentences will involve a new independent body of Parole Commissioners for Northern Ireland. On completion of the ICS tariff, the offender is risk assessed by the Parole Commissioners. The prisoner can be released or required to remain in prison until the risk has sufficiently diminished to allow release and supervision in the community. For an ECS, release would be possible during the second half of the sentence based on the Parole Commissioners’ risk assessment. If not released at that point, the person must be released at the end of the custodial part.

25. Following release, all public protection prisoners will be on licence and under supervision. During their licence period – for the ICS sentence that could be in place for life; for the ECS that could be up to 8 years – prisoners may be recalled to custody by the Secretary of State for breach of conditions. Any recalls will be reviewed by the Parole Commissioners.

Custodial Sentences

26. Chapter 2 contains general provisions on custodial sentences. These include restrictions on imposing discretionary custodial sentences, appropriate lengths of custodial sentences, splitting discretionary custodial sentences into custody and licence parts, and procedural requirements for imposing discretionary custodial sentences. Provisions are also made for additional requirements in the case of mentally disordered offenders and for the disclosure of pre-sentence reports. For the purposes of legislative consolidation, Chapter 2 replicates some provisions from the Criminal Justice (NI) Order 1996.

Release on Licence

27. 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 halfway point and will remove automatic 50% remission.

Curfews and Electronic Monitoring

28. New powers will allow increased use of curfews as a condition of bail; as a condition or requirement attached to certain non-custodial sentences; and as a condition of a licence on release from custody. The parallel creation of powers for electronic monitoring or ‘tagging’ will allow also the effective monitoring of curfews and, therefore, their wider use in preference to custodial sentences or remands in custody.

29. The proposals also provide the Secretary of State with a power to release early a standard determinate prisoner subject to curfew and electronic monitoring requirements. Any such release will be subject to strict conditions and can only occur towards the end of the sentence. Such release could be used to facilitate re-integration into the community and to reduce the risk of re-offending.

Supervised Activity Orders

30. Chapter 5 and Schedule 3 create a Supervised Activity Order available to the court as an alternative to custody for fine default. Rather than being sent to prison for non-payment of a fine, courts will be able to impose a community-based alternative.

31. The Supervised Activity Order will be available for fines up to £500 and will have a minimum of 10 hours and maximum of 100 hours activity requirement. Activities will be set and supervised by a supervising probation officer. Failure to comply can result in a longer prison sentence than would have been the case had a custodial period been set in the first instance.

Parole Commissioners

32. Chapter 6 and Schedules 4 and 5 create a body of independent Parole Commissioners for Northern Ireland to assess dangerous offenders’ suitability for release into the community and to review decisions recalling prisoners on licence to custody. The current Life Sentence Review Commissioners are renamed and their role extended to include these functions. The Parole Commissioners provisions largely replicate and replace those already in law by way of the Life Sentences (NI) Order 2001.

Part 3 -Risk Assessment and Management

33. Part 3 creates a duty on a number of criminal justice agencies and other organisations to more effectively assess and manage the risk posed by certain persons in the community, where that risk can best be managed by agencies sharing information and working together.

34. The agencies that will be operating the arrangements are specified and include the police, the prison service, probation service, the NSPCC, and relevant Government Departments or agencies.

35. The powers do not give any additional statutory powers to individual agencies but seek to maximise the effectiveness of their existing statutory functions through multi-agency working. Guidance, prepared by the agencies and approved by the Secretary of State, will provide the detail of how the arrangements will operate in practice. An annual report must be prepared.

Part 4 – Road Traffic Offences

36. Part 4 of the Order contains new powers to address areas of road traffic law. The provisions cover : “Bad driving” including a new definition of “careless driving”; a new offence of “causing death or grievous bodily injury by careless driving”; and more severe penalties for unlicensed, disqualified or uninsured drivers who cause death by driving; “Drink driving” including tighter laws on failing to allow specimens to be tested; stronger police powers to obtain breath specimens; and regulations regarding ‘alcohol ignition interlock’ programmes. Also included is a series of police powers to seize vehicles causing alarm, distress or annoyance (mini-scooters or quads being raced around public streets); and to regulate the use of devices used by some motorists to avoid speed detection.

Part 5 – Miscellaneous and Supplementary

Purchase and Consumption of Alcohol

37. Part 5 makes provision for combating alcohol-related nuisance and disorder and addresses the problem of the sale of alcohol to minors. A “test purchase” power is to be created to allow police officers to identify bars and off-licences selling alcohol to under 18s. The test purchase power can only be used under the direction of a police constable; with written parental consent; and with a requirement to avoid any risk to the welfare of the minor.

38. Powers are also created to deal with the consumption or possession of alcohol in designated public places where there is a problem of anti-social behaviour associated with drinking alcohol. An offence would be committed when a person failed to comply with a constable’s request not to drink alcohol, or with his request to surrender alcohol. Public places would be designated by District Councils. The maximum penalty on conviction of the new offence would be a fine of up to £500. A fixed penalty (set initially at £50) would be available as an alternative to prosecution.

Prisons

39. A number of amendments are proposed to the Prison Act (Northern Ireland) 1953, including minor miscellaneous changes concerning medical officers and amendments to better control, regulate and modernise prison security. Amendments to the laws on assisting a prisoner to escape and conveyance of prohibited articles into or out of prison including drugs, weapons, mobile phones, satellite phones and cameras are also provided, with increased penalties.

Live Links

40. A number of provisions are included to consolidate the law on and increase the use of live video links. Such facilities are already in use for prison remand purposes and have the benefit of providing a cost-effective and secure means for prisoners to participate in remand hearings without having to be transported to court. The new powers will expand the use of video links in Courts to include, in certain circumstances: preliminary hearings, sentencing hearings, evidence of vulnerable accused, and appeals under the Criminal Appeal Act.

Legal Aid

41. Two technical amendments are made in relation to legal aid provision. These amendments are to the Access to Justice (Northern Ireland) Order 2003 and relate to legal aid for proceedings relating to anti-social behaviour orders and to proceedings under the Proceeds of Crime Act 2002.

Police and Criminal Evidence

42. Amendments being made to the Police and Criminal Evidence (Northern Ireland) Order 1989 alter the police authorisation level required for certain procedures; introduce trigger powers for entry into premises in particular circumstances; and create new powers to allow police to attach conditions to bail before charge.

Penalties

43. New sentencing powers extend the maximum penalties available to the courts for certain offences relating to knives, though they also include crossbows and other offensive weapons. Broadly the new penalties will relate to offences of possession, manufacture and sale. The provisions introduce a standard set of maxima – 12 months’ imprisonment and/or a £5000 fine where a person is convicted in a magistrates’ court; 4 years and/or an unlimited fine for convictions in the Crown Court.

44. New powers are also created for courts to impose a driving disqualification for any offence. This is designed to allow courts to disqualify from driving individuals convicted of offences which might involve vehicles but are not ‘motoring’ offences per se.

Proving Execution of Arrest Warrants

45. New provisions are proposed to enable a wider range of magistrates’ courts to hear the proving of the execution of arrest warrants.

46. In appropriate circumstances an arrest warrant issued in one County Court Division could be proven in the Division of arrest or in a County Court Division which adjoins the Division of arrest. The transport of defendants across court divisions would be reduced providing a more effective and efficient procedure.

Anti-Social Behaviour Orders

47. Two adjustments are made in relation to legislation relating to anti-social behaviour orders. To allow existing interim order powers to operate more effectively, applications will be possible without notice, and a technical amendment is also included to enable rules of court to be made for special measures for witnesses.

Youth Justice

48. A number of adjustments are made to youth justice legislation. Rehabilitation periods for youth conference orders, reparation orders and community responsibility orders are clarified. Powers are also created to allow children aged 17 who require custody to be accommodated in a juvenile justice centre if no suitable accommodation is available in a young offenders centre; clarifying the period a youth conference order remains in force; removing the requirement for a care order to be suspended whilst a child is serving a juvenile justice centre order; and the powers of the youth court to notify the appropriate authority where it has concerns regarding the welfare of a child are extended.

Part 6 -Supplementary

49. Part 6 provides for the statutory procedures for regulation, order or rule making powers by the Secretary of State; the making of incidental or consequential provisions and any transitory transitional or savings provisions; amendments and repeals.

Committee’s Consideration of the Proposed Draft Criminal Justice (Northern Ireland) Order 2007

General Comments

50. The Draft Criminal Justice (Northern Ireland) Order 2007, which the Committee was told will be the largest Criminal Justice Order that has ever been introduced here, covers a wide range of justice, policing and community safety issues. These are matters that affect the whole of society and many are frequently in the public eye, from the sentencing, release and management of dangerous offenders, through to the disorder caused by drinking in public places and the nuisance caused by quad bikes and mini-scooters.

51. The Committee supported the four key purposes behind the Draft Order as explained by NIO officials:

• enhancing public protection
• improving provision for the management of dangerous offenders
• improving the supervision and rehabilitation of offenders in the community
• enhancing public confidence in the criminal justice system.

52. The Committee saw the proposals as timely and Members welcomed the opportunity to engage directly on these very important issues with representatives of the NIO, DoE, DSD and a number of key agencies at a time when the future devolution of justice and policing is under consideration. Representatives from the departments and agencies also expressed their welcome for the opportunity to discuss the implications of the draft legislation with local political representatives.

53. This section of the Report sets out the Committee’s conclusions and recommendations on the various issues covered within the Draft Order taking account of the written and oral comments provided by the organisations who gave evidence.

Recommendation

54. The Committee expects the Secretary of State, the NIO and, where appropriate, other departments to consider seriously the conclusions and recommendations made in this report and to accept them.

Sentencing and Licence Arrangements (Articles 3 to 34)

55. The Committee heard evidence from a range of organisations in relation to the new sentencing and release on licence proposals and in particular the provisions relating to the new public-protection sentences. Members were pleased to hear that the Northern Ireland Office had fully engaged with organisations such as the Probation Board before drafting the legislation.

56. The Probation Board, the Prison Service and Criminal Justice Inspection were generally supportive of the proposals and the Committee welcomed the fact that the senior management within the probation and prison services had already been working together and with the NIO to plan implementation of these significant new arrangements. Representatives of these two key agencies also assured the Committee that they had been involved in discussions with the NIO to ensure they would have the resources necessary to implement the revised systems flowing from the Draft Order. Both organisations were already planning implementation and, while they acknowledged the challenges ahead for their organisations, both were able to assure the Committee that they would be able to cope with the increasing workload and demands of the new arrangements.

57. Some concerns were expressed by the NI Human Rights Commission (NIHRC), the Chairperson of the Life Sentence Review Commissioners and the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) about the proposed new indeterminate custodial sentence (ICS) and extended custodial sentence (ECS) arrangements, which are already in operation in Great Britain. There was some disquiet that these had not been based on research or evidence by penologists, but rather had been a political reaction to public concern about dangerous crime and the risk of serious harm to the public.

58. The concept of indeterminate sentences caused particular concerns for NIHRC and NIACRO. They suggested that an ICS would appear to be punishing people for what they might do as well as what they had done. The NIHRC expressed serious concern with the possible psychological impact on prisoners given such a sentence and with the breadth of the list of specified serious offences for which an ICS could be given. NIHRC asked that courts should be provided with a consistent assessment process for all cases where an indeterminate sentence is considered.

59. The Committee was given evidence given by Criminal Justice Inspection and others that lessons had been learnt from experience in England and Wales where the Prison and Probation Services had been initially overwhelmed by the imposition of short-tariff indeterminate sentences.

60. The Committee also received evidence that the proposed legislation had been drafted to take account of the problems encountered and experiences of the public-protection sentences in England: by removing the presumption of dangerousness; by giving more discretion to courts in choosing between ECS and ICS; by providing for a minimum 1-year tariff for ECS and a 2-year minimum for ICS; and by providing that these sentences would be able to be imposed only on indictment.

61. Members therefore gave a general broad welcome to the proposals including: indeterminate and extended custodial sentences; the ending of automatic 50% remission; the proposed new parole and licence arrangements; and the compulsory supervision of all offenders on licence after release to address offending behaviour and reduce the likelihood of reconviction.

62. The Committee also welcomed the expressed intention of the NIO to work with the Lord Chief Justice’s Office and the Judicial Studies Board to provide whatever assistance is needed to prepare the judiciary for the implementation of these new sentencing arrangements. The Committee suggested that the development of guidelines and courses by the Judicial Studies Board for the judiciary would be crucial to ensure that the new public-protection sentencing arrangements are implemented strictly in accordance with the legislation and that the judiciary are fully aware of the problems and experiences of inappropriate indeterminate sentences in England and Wales.

Recommendation

63. The Committee recommends that guidelines and courses should be developed to assist the judiciary in the introduction of these new measures.

Recommendation

64. The Committee recommends that consideration should be given by the NIO to the most appropriate mechanisms to inform sentencing policy.

Recommendation

65. The Committee recommends that, as a matter of good practice, the new sentencing and licence arrangements should be subject to ongoing review by Government in consultation with other key agencies so that any implementation problems can be rectified quickly in conjunction with those agencies and if necessary the policy and legislation amended.

66. The Committee was very conscious of the need for Government to properly resource the implementation of these significant new arrangements. Furthermore the Committee agreed that it was vitally important to explain all the main changes in the law to the general public so that there should be no misunderstanding about the new law and arrangements including, for example, the rules relating to dangerous offenders and the fact that there would be no retrospection, or the ending of automatic 50% remission. The Committee’s conclusions and specific recommendations on the issues of resources and publicity are covered in greater detail later in this report.

Recommendation

67. The Committee recommends that the main changes being introduced by the Draft Order, particularly those around the public protection sentences, ending of automatic 50% remission, and the fact that the changes cannot be applied retrospectively, must be publicised and explained to the general public.

Curfews and Electronic Monitoring (Articles 35 to 44)

68. The proposals to give courts additional powers to impose curfew and electronic monitoring of offenders, as a condition of bail, as part of a licence condition, as part of a community disposal, or as part of a juvenile justice order, were broadly welcomed by PBNI, the Prison Service and CJI as a means of strengthening the management of offenders in the community. No concerns were raised during evidence and the Committee supported the proposals.

Supervised Activity Orders (Articles 45 to 47)

69. The Committee and organisations who gave evidence welcomed the proposal to use supervised activity orders in the community as an alternative to imprisonment for offenders who default on fines. The Committee noted that the court would still have the option of a custodial sentence and that if a person breached a supervised activity order, the penalty would be a heavier custodial period than in the first instance.

70. Members were pleased to hear the Probation Board’s evidence that the supervised activities, for which PBNI would be responsible, would be geared wherever possible towards retribution for the original offence (e.g. where a fine had been imposed for a graffiti offence, a supervised activity might involve removal of graffiti). PBNI indicated that offenders would undertake purposeful, unpaid work for the benefit of the community, and related to the offence committed. The NIHRC stressed the importance of resources to ensure that appropriate activities with a restorative element are made available.

71. The Probation Board indicated that it would identify areas of need with community and voluntary groups and ask these groups how it can work with them to allow offenders to show that they really are sorry for their offences.

Recommendation

72. The Committee commends the stated intention of PBNI to ensure that as far as possible supervised activities would be directly related to some sort of reparation for the initial offence; and recommends that PBNI should work closely with the relevant community and voluntary groups to achieve this objective.

Parole Commissioners (Articles 48 and 49)

73. The role given to the Parole Commissioners under the Draft Order was welcomed by organisations giving evidence and supported by the Committee. The proposals will see them take on additional duties to those of their predecessors, the Life Sentence Review Commissioners. Parole Commissioners will be responsible for three categories: prisoners given mandatory or discretionary life sentences; prisoners given indeterminate custodial sentences; and prisoners given extended custodial sentences. That will entail a greater volume of work for commissioners, and the sentences are likely to be subject to more public scrutiny. Therefore commissioners will have to demonstrate that decisions have been taken properly and consistently and can be defended in public.

74. The Committee heard evidence from Mr Peter Smith QC, chair of the current panel of Life Sentence Review Commissioners, who indicated that the NIO had engaged already with the Life Sentence Review Commissioners in relation to resources needed by the Parole Commissioners to exercise their extended functions. Mr Smith indicated that the Life Sentence Review Commissioners had no corporate view on the proposals and that he was offering his personal opinions on the provisions. He subsequently highlighted the likely increase in prison numbers flowing from the new sentencing arrangements and the greater pressure on the facilities for prisoner rehabilitation and post-release supervision. In his annual report 2007 to the Secretary of State, the Chair of the Commissioners had also pointed out that failure to make sufficient resources available would result in the development of a vicious circle of:

• prisoners being inadequately prepared for release;
• panels not giving release directions because prisoners have been inadequately prepared or because of concern as to the effectiveness of poorly resourced post-release supervision arrangements; and
• further reduction in preparation and post-release supervision capacity because resources have been dissipated in keeping prisoners in prison.

75. The Committee supported these sentiments and welcomed the NIO’s stated intention to increase the resources and, if necessary, to recruit more parole commissioners. The NIO had also indicated that it would be a step-wise enhancement because, initially, it was estimated that there would be only a marginal increase in cases for consideration by the parole commissioners. Representatives of Criminal Justice Inspection had suggested to the Committee that because decisions on parole are likely to be subject to more public scrutiny under the new arrangements, one option might be to use fewer parole commissioners but on a more regular and intensive basis than at present to ensure consistency of approach. The Chair of the Commissioners however indicated that there had been no problems with consistency during the 5 years of their tenure to date.

76. The Committee acknowledged that there would be a staged increased workload for the Parole Commissioners including the new categories of ICS and ECS prisoners and the likelihood of seeing some prisoners on numerous occasions. While recognising the suggested option of using fewer commissioners on a more regular basis as worthy of consideration, the Committee felt that the NIO and the Parole Commissioners were best placed to make these decisions based on their knowledge and experience.

Recommendation

77. The Committee recommends that the NIO should work closely with the Parole Commissioners on an ongoing basis to achieve a proper balance between the number of commissioners (and administrative support staff) and the workload of individual commissioners in order to ensure that there will continue to be a consistency of approach in decision-making under the proposed new release on licence provisions.

Risk Assessment and Management (Articles 50 to 52)

78. The Draft Order includes proposals to put on a statutory footing the Multi-Agency Sex Offender Risk Assessment and Management (MASRAM) arrangements and to extend the procedures to violent offenders. These proposals were welcomed and strongly supported by the Committee.

79. Members were assured that all the relevant agencies will be required under the new legislation to work together and share information to manage effectively the risk that serious sexual and violent offenders in the community present, thus enhancing the protection of children and adults, particularly those who are vulnerable.

80. The Committee was impressed by the evidence received from Criminal Justice Inspection and the NIO indicating that, in their view, we already have some of the best multi-agency risk-assessment and risk-management arrangements in place. The Committee commended the various agencies for the work they have done to date in cooperating to protect the public but acknowledged that there can be no room for complacency when dealing with dangerous offenders. Members were reassured in this respect by the evidence from PBNI that they were already working closely with PSNI and others to implement a recommendation from CJI for the development of a co-located public-protection team. This would involve the relevant agencies coming together physically to further enhance the oversight and management of those offenders who present the greatest risk in the community. While the Committee acknowledged that risk could never be completely eliminated it urged the relevant agencies to do all in their power to minimise risk and considered that the proposal for a co-located public-protection team would certainly help to achieve this objective.

81. As part of their evidence NIO officials indicated that they were considering highlighting the MASRAM arrangements in the media in Spring 2008 so that the public would be better informed on the procedures in place to protect them. The Committee supported this proposal.

Recommendation

82. The Committee recommends that the proposal for a co-located public-protection team should be developed further as a matter of urgency so that this becomes a reality as soon as possible. The Committee further calls on the NIO and the various agencies involved to ensure that this team is properly resourced and kept under review, and that the highest priority is given by all the agencies involved to the important work done under the MASRAM arrangements.

Probation Service

83. During evidence taken from the Probation Board the Committee was given details about the current probation workload and the anticipated increase in cases flowing from the proposed new sentencing, licence and supervision arrangements. At present PBNI produces around 6,000 reports a year to the courts to assist judges and magistrates in setting appropriate sentences. It manages nearly 4,000 people in the community. The proposed legislation will increase the number of people under their supervision by around 50%. PBNI will have statutory responsibility for offenders when they leave prison as opposed to the current voluntary engagement. NIACRO in its evidence emphasised the importance of agencies cooperating in support of individuals on release as crucial to support resettlement and to reduce re-offending rates.

84. The Committee was encouraged to hear from PBNI that reconviction rates in Northern Ireland are lower than elsewhere throughout these islands, although this fact has not been well publicised. PBNI confirmed that it and other criminal justice organisations had worked closely with the NIO on the development of the policies behind the draft legislation and that PBNI was supportive of the proposals and welcomed the central role given to it in the future management of offenders.

85. PBNI reported that it allocated some £1.2 million a year to the voluntary and community sector to help the probation service manage offenders in the community. The Committee welcomed the undertaking by PBNI to continue to work and develop their links with community and voluntary organisations to complement their work.

86. PBNI is currently consulting on its draft corporate plan for 2008-2011 and the Committee commended its broad central themes of:

• more joined-up thinking and action across Government in dealing with offenders
• end-to-end offender management (the same probation officer would take care of the initial pre-sentence report, ensure the offender signs up to appropriate offender-behaviour courses while in prison, and manage the offender during the probation period and after release from prison).

87. The Committee further welcomed the evidence given by PBNI that responses to its recent recruitment exercises had been very positive, that the organisation has a good professional reputation and that the Board intends to phase its recruitment to cope with the expected increase in workload over the coming years. The Committee also welcomed the establishment of a strategic joint steering group involving the Prison Service, PBNI and other partners to focus on offender behavioural programmes.

Note: The Committee’s recommendations relating to the probation and prison services appear at the end of the following section on prisons.

Prison Service

88. Representatives of the Northern Ireland Prison Service in their evidence indicated that the Service was in a transitional phase. Whereas in the past it had been focused largely on security and the management of paramilitary prisoners, its statement of purpose now referred explicitly to public protection and its focus is moving to resettlement and offender management. The proposed Order would add momentum to this transition as its objective is to focus prison on those who need it most, with longer sentences for the most serious offenders and alternatives to custody for persons who are not a risk to others.

89. The Committee heard that some of the more dangerous offenders could not at present be compelled to address their offending behaviour but the proposed new public protection sentences, licence and parole arrangements should encourage offenders to engage with the prison and probation services to reduce the risk they pose. The Prison Service indicated that there is agreement between prison service management and the prison officers’ association on the need to develop staff for active engagement with prisoners including programme facilitation. A mandatory 2-day development course is being delivered to all main grade officers and a 5-day course had already been delivered to all middle managers.

90. Statistics provided to the Committee indicated that since 2001 there had been a 62% increase in the prison population. On average over the last six years the prison population had increased over 10% per annum. Remand prisoners now constitute 35% of prison population while the life-sentenced population had doubled from 88 prisoners in 2001 to 173 now. The current overall prison population was currently 1,432 and it was estimated, that this could increase to 2,700 by 2022 (including ICS and ECS prisoners).

91. Under the proposed new arrangements the Prison Service will provide additional suitable offending behaviour programmes, education and training for prisoners with a public protection sentence. In addition to existing expenditure (the total prison service budget for 2007/08 is £132 million) the prison service plans to invest a further £4.7 million over the next three financial years to implement the changes. This will include investment in education and psychology services to recruit and train new staff to undertake risk assessments, provide programmes and work directly with dangerous offenders to reduce their risk, and to put the necessary structures in place to manage the process. Representatives stressed the importance of working closely with NI Departments and agencies, especially DHSSPS, DEL and DE and the transfer of funding (some £6 million to the Health Service for the healthcare of prisoners) will assist in this respect.

92. The Committee was provided with an estimate from the prison service that up to 65% of prisoners may have some form of mental health problem or personality disorder. This presents a challenge for the system in terms of the regime to manage their behaviour, provide appropriate care and reduce the risks they pose before and after release. The Committee was informed that the Bamford Committee had recommended a new fully secure mental health facility, as had the Northern Ireland Affairs Committee.

93. The Committee welcomed confirmation from the Director of the Prison Service that while the Probation Board would have a greater role in working with offenders in prison, there was no blurring or conflict of roles and the two agencies were continuing to work closely together to deliver on the proposals. The Director also agreed with the sentiment expressed by CJI in its evidence that implementation of the Draft Order would require the prison service to step up its game significantly. He was confident however that the necessary resources would be available to implement the changes and that the Prison Service could deliver those changes. They had recently held a meeting with their counterparts in England and Wales to discuss their implementation of the Criminal Justice Act 2005 and to learn from their experiences, problems and challenges.

94. The Chair of the Life Sentence Review Commissioners, CJI, the NIHRC and NIACRO all raised with the Committee the potential for legal challenges if prisoners could not avail of behaviour-change programmes due to lack of resources. A court case in England (Wells v the Parole Board 2007) had highlighted the problem of the non-delivery of programmes for prisoners serving public-protection sentences and the Committee heard that similar problems here could result in prisoners not being released early by the parole commissioners because there would not be evidence of a reduction in risk. The effect would be that prisoners could be punished beyond the period of the actual punishment element of their sentences.

95. The Committee was assured however that PBNI is having full discussions with the Prison Service about the regimes that will be required to deliver behaviour-change programmes and that these would be central to the operation of the new arrangements within prisons. The evidence presented to the Committee of an ongoing high level of cooperation between the Probation and Prison Services and the fact they have agreed a resettlement strategy and a resettlement implementation plan was also welcomed. Criminal Justice Inspection in its evidence had indicated that it was committed to probing the delivery of programmes for prisoners serving ICS, ECS and life sentences and this too was welcomed.

Lack of an Open Prison Facility

96. Mr Smith QC, Chair of the Life Sentence Review Commissioners, in his evidence had cited the lack of an open prison in Northern Ireland as a major disadvantage. For prisoners who may receive indeterminate custodial sentences, he suggested that the facility of an open prison would be an important asset in testing and preparing them for eventual release. He stressed that the lack of such a facility created immense complications in the assessment of risk posed by prisoners whom commissioners are considering releasing into the community and that the issue also affects the preparation of those prisoners for leading constructive lives on leaving prison. He made the comparison with England and Wales where life-sentence prisoners are not released unless they have spent three years in an open prison. He acknowledged that we do have a well-organised and well-run prisoner-assessment unit, but said that this was a very different facility to an open prison and that the duration of a standard course in the prisoner-assessment unit here is only nine months.

97. The Director of the Prison Service told the Committee that the service was doing what it could within the existing facilities at different locations to remedy the open-prison gap. He agreed that the prisoner assessment unit in Crumlin Road Prison was not a wholly satisfactory facility and could house at most 20 prisoners. It is not a fully open prison of the type used elsewhere. There were also facilities in Magilligan which has 82 places for prisoners who are approaching the end of their sentences. Although they had not chosen to send life-sentence prisoners to Magilligan that decision would be kept under review as they considered the nature of the population to be housed in the proposed new prison at Magilligan. It would be important to identify accommodation that would give appropriate prisoners more responsibility for their own arrangements, catering etc. The Committee heard that the new landing created for women in Ash House allowed them to have their own keys and make decisions about their lock-up times and catering arrangements.

98. In addition the Prison Service has two facilities in Mourne House, Maghaberry where women prisoners were previously held. These currently contain about 25 life-sentence prisoners, who are potentially the individuals within the last three years of their sentence. These prisoners must meet certain criteria in order to demonstrate that they are ready for release. They have greater independence and responsibility for their living arrangements, and that is as close as they can get at present to an open prison in the Maghaberry complex, although it was acknowledged that prisoners there are still behind a high wall.

Other Prison Issues

99. The Committee welcomed the statement that an interim report on proposals for women in custody (and the community) is due to be put to Ministers by end February 2008. CJI had also highlighted as a priority the provision of a dedicated female prison facility and this was supported by the Committee. The Committee also welcomed the indication from Criminal Justice Inspection that it would be reporting on Offender Hostels early in 2008.

Recommendation

100. The Committee recommends that the Probation and Prison Services continue to work closely in partnership to ensure that all relevant aspects within the proposed legislation can be delivered effectively and efficiently.

Recommendation

101. The Committee recommends that the Prison and Probation Services ensure that all relevant prisoners have access to appropriate basic skills training and behaviour-change programmes; and that the necessary resources should be deployed to facilitate such programmes so that prisoners may prepare themselves to be acceptable for release.

Recommendation

102. The Committee, while acknowledging the competing priorities within the prison service estate, recommends that the Government should re-examine the proposal for an open prison in the light of evidence provided to the Committee.

Road Traffic Offences (Articles 53 to 65)

103. The Department of the Environment provided evidence to the Committee on the Road Traffic Offences within Part 4 of the Draft Order. Officials confirmed that the proposed new road traffic offences reflect those which already exist in England and Wales (under the Road Safety Act 2006 and the Police Reform Act) and that the measures are deemed to be good road safety measures for Northern Ireland.

104. The Committee supported the proposed new offences for: causing death or grievous bodily injury by careless or inconsiderate driving, or by driving while unlicensed, disqualified or uninsured; and for the use of speed assessment equipment detection devices which can detect or interfere with police speed detection facilities. There was also support from the Committee for the increased penalties for failure to stop and furious driving; and for the power to require specimens of breath at roadside or at hospital.

Alcohol Interlock Ignition Schemes (Articles 59 and 60)

105. Officials from the Department of the Environment confirmed that the Department for Transport in England had been running a pilot alcohol interlock ignition scheme over a two-year period, primarily in Birmingham and Manchester. The pilot programme had now concluded but the report on it had not yet been published. Findings from the pilot will form the basis of decisions on whether such a scheme will be made available throughout England and Wales. The Draft Order provides the power to introduce a similar scheme in Northern Ireland.

106. The DoE officials explained that the scheme is aimed at problem drinkers who have difficulty in kicking the habit and trying to encourage them to be able to drive without taking any alcohol. There were mixed reports from around the world about the use of these schemes. Several countries introduced the scheme in pilot form some time ago and have since made it permanent. Other countries have experimented with the programme but have decided that it had not been such a success. However it was DoE’s view that there should at least be an experimental period and examination of the results before deciding whether the programme is appropriate for Northern Ireland. Members were informed that the device has the capability to recognise the driver’s breath, similar to a fingerprint, and will recognise whether each breath sample is the same as the initial sample.

107. The Committee supported the proposal to test the scheme over an experimental period in Northern Ireland as another part of the Government’s campaign against drink-driving. The other driving offence provisions (in Articles 61 to 63) were also supported by the Committee.

Seizure of Vehicles Causing Alarm, Distress or Annoyance (Articles 64 and 65)

108. The Committee heard evidence from the DoE and the PSNI regarding the new powers to be given to the police to deal with the anti-social use of motor vehicles on or off public roads. The problem is generally regarded as a public nuisance issue but there have been cases where people have been tragically killed or maimed as a result of the use of vehicles such as quads or mini-scooters. Similar provisions are already in force in England and Wales and have proved to be very effective in dealing with the problem.

109. DoE officials explained that vehicles, whether lawfully or unlawfully held, that are causing alarm, distress or annoyance can be seized and disposed of by the police. The police also have the right to go onto premises, other than private dwellings, in pursuit of offenders who may have headed down alleyways or into public parks. Police cannot go into a private dwelling to seize them. The PSNI explained that in practice the police will not be seizing vehicles unless and until the rider has been previously issued with a warning for riding the vehicle in a manner causing alarm, distress or annoyance. The Committee strongly supported these provisions.

Test Purchases of Alcohol (Article 66)

110. This provision would allow a person under 18 years of age, under the direction of a police constable, to enter licensed premises to seek to purchase alcohol. The Committee heard evidence from representatives of the NIO and the Department for Social Development who indicated that, since similar provisions had been introduced in England and Wales, there had been a dramatic fall in sales of alcohol to under-age people (from 50% of outlets tested in 2004 down to 15% in 2007). It was confirmed that the police must obtain parental consent in writing for the young person to be involved and must take all reasonable steps to avoid any risk to the young person.

111. In their evidence to the Committee, representatives of NIACRO and the NIHRC expressed strong concerns about the proposal to use children to entrap retailers. Although NIACRO supported measures to cut the supply of alcohol to under-age people it suggested that better education and community supports offered a more positive way to address the issue in the longer term.

112. The NIHRC in its evidence and opposition to the proposal cited the United Nations Convention on the Rights of the Child. The Convention states that:

• in all actions concerning children the best interests of the child shall be a primary consideration (Article 3);
• no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation (Article 16);
• States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare (Article 36).

113. NIHRC did not consider it to be in the best interests of any child to be used to promote the commission of a criminal offence in an entrapment situation and asked what possible benefit there could be to the child to be involved in such a scheme. Representatives suggested that the police could mount their own undercover operations rather than use this power. They were also concerned that it would be the vulnerable child who is known to the police who might be asked to participate, maybe to avoid a caution or an ASBO. The Commission was further concerned about the risks to the safety of a young person who assisted the police in the entrapment of a licensee, suggesting that it might lead to threats or risk of physical violence from persons subsequently charged or others.

114. The NIHRC also challenged the NIO’s conclusion that this power would have no adverse impact between the various section 75 groups. Given the possible risks to the child and the potential for breach of the UK’s commitments under international human rights law, the Commission said it could not endorse the NIO’s conclusion that this power ought not to be submitted to a full Equality Impact Assessment under Section 75 of the Northern Ireland Act 1998.

115. The Committee acknowledged and appreciated the very strong concerns expressed about the possible risks to young persons used by the police under the proposed scheme. However it was the Committee’s view that we have a drink culture and a problem with alcohol dependency and that these issues need to be tackled on many different fronts. It acknowledged that the licensed trade and councils are already doing some good work through for example the Challenge 21 campaign, which encourages off-licences etc to challenge people who look like they are under 21 years of age. Members considered, however, that such schemes rely on the goodwill of the retailers and that these types of campaigns and general education about alcohol alone are unlikely, because of their voluntary nature, to be effective in reducing significantly the sale of alcohol to young people.

116. Against the concerns expressed the Committee weighed the evidence that the test purchase scheme had already been in operation for a number of years and had proved to be an effective deterrent in England and Wales. Indeed the Committee heard that some outlets there had lost or had their licences reviewed due to persistent sales to minors as revealed by test purchase schemes. Members also considered that there would be wider benefit to children generally and to society if the sale of alcohol to minors could be effectively reduced. The Committee was further reassured by the wording of the Draft Order which provided that a parent of the child would have to give written consent, and that the police must be satisfied that all reasonable steps have been taken (or will be taken) to avoid any risk to the welfare of the young person.

117. On balance therefore the Committee supported the proposal, subject to an Equality Impact Assessment being undertaken. The Committee recommended that in implementing the scheme the police should take account of experiences of other police forces in England, Wales and Scotland. The Committee was informed that a pilot scheme had recently been successfully completed in Fife, Scotland and that Good Practice Guidelines on the operation of test purchase schemes had been produced for local authorities and police forces in Scotland. A copy of the Scottish Guidelines is included as an Annex to the Committee Minutes of the meeting on 21 January 2008 (see Appendix 1).

118. The Committee recommended that the PSNI should publicise its intentions in advance so that retailers would be fully aware of the scheme and the consequences of selling to minors. Furthermore the Committee proposed that the scheme should only be operated under strict controls, including lower and upper age restrictions and supervision of young persons involved, and these issues should be covered in guidelines for relevant trained police personnel. The Committee would expect that similar success to that achieved in England, Wales and Scotland could be achieved here over the next few years once the scheme is operational.

119. The Committee also discussed other possible means of tracking retailers who sold alcohol to minors. These included exploring the possibility of forcing off-licences etc to use carrier bags that clearly identify the retailer rather than plain blue plastic bags; and the practice used in the USA where items of alcohol are bar-coded enabling them to be tracked to point of purchase.

Recommendation

120. The Committee recommends that the NIO should undertake an Equality Impact Assessment on the test purchase scheme taking account of the views and concerns raised by the NIHRC.

Recommendation

121. The Committee recommends that the PSNI should publicise widely in advance that they will be using this test purchase power to detect retailers who sell alcohol to persons under 18.

Recommendation

122. The Committee recommends that the PSNI should develop operational guidelines for personnel involved in the test purchase scheme. These should address specifically issues such as the ages of young persons to be used and the need to ensure their welfare is protected. The guidelines should also make it clear that in no circumstances should a vulnerable young person be considered for use in the scheme.

Recommendation

123. The Committee recommends that DSD and PSNI should also consider the feasibility of schemes used elsewhere for tracking sales of alcohol to minors.

Alcohol Consumption in Designated Public Places (Articles 67 to 71)

124. Under these proposals, as explained initially to the Committee by NIO officials, councils would continue to have the power to designate areas where public drinking may not take place. However, they must do so in consultation with the police and the areas would have to be places associated with disorder and alcohol-related nuisance. It would not necessarily be an offence to consume alcohol in a designated area (this is currently an offence). It was explained that drinking alcohol is not the issue but rather the anti-social aspect of it, including failure to stop drinking when requested. Under the proposals the police would have discretion to allow drinking that does not cause nuisance.

125. Further evidence on these proposals was provided by officials from the Department for Social Development and the PSNI. As currently drafted the Order would give the police a power to require a person in a designated public place (a) not to consume intoxicating liquor or (b) to surrender any such liquor in his possession. The new provisions would allow the police to issue a fixed penalty notice, to be set initially at £50, as an alternative to prosecution. The Draft Order provides for district councils to designate the public places where drinking would not be permitted (as they do at present under their bye-laws) and for the police to enforce the provisions.

126. The Committee heard evidence, and Members were already aware from their involvement in councils, that the current drinking-in-public bye-laws are widely regarded as inadequate. There is no power at present to remove alcohol from persons in designated places, resulting in offenders simply moving to nearby undesignated locations and continuing to drink. The Committee was informed that during consultation by DSD in 2003/04 there had been substantial support for the introduction of provisions to allow for confiscation of alcohol and for fixed penalty notices.

127. The Committee was told that following discussions between DSD and NIO the respective Ministers had agreed that a balance should be struck so that problematic public drinking could be tackled on the spot through providing the police with appropriate powers, whilst also encouraging people to enjoy public places more fully. The Committee was also told that during the 2003 consultation councils were not asked directly about a blanket ban, but that 4 of the 16 councils that responded had suggested that a blanket ban be considered.

128. On the question of enforcing the proposed powers, the Committee was informed by DSD that the Minister for Social Development believed that district councils’ involvement in on-the-ground enforcement was 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.

129. In its evidence the PSNI indicated that it saw the enforcement of the new provisions as one primarily for councils but with support provided by the police where council officials got into difficulty, for example, if there was a breach of the peace/assault etc. PSNI representatives referred to the discussions between the police and DSD for a strengthening of the law which had been ongoing since 2002. The initial proposals had envisaged joint police and council enforcement powers. The PSNI view was that the enforcement of the drinking in public places provisions is not a core policing issue nor a policing priority and that it would be more appropriate for councils to take the lead on enforcement as they do in other areas such as street trading, dog fouling, noise, litter and the smoking in workplaces ban.

130. The PSNI would therefore welcome joint powers of enforcement, with district councils taking the lead and police being involved in joint pro-active operations, where necessary, with council enforcement teams. The PSNI suggested that council officers in the course of their other duties may come across breaches of the drinking law and could then take the appropriate enforcement action.

131. During its discussions the Committee discussed the various disorder and nuisance problems caused by drinking in public places including the intimidation of the general public. While the new provisions allowing confiscation of alcohol and fixed penalty notices were welcomed by the Committee, Members thought that the ongoing problem of designating and further designation of areas by councils would remain a challenging issue, including the erection of appropriate signs and the tendency for offenders to find a way round the designated areas by simply moving to other locations.

132. Furthermore the Committee was concerned about the additional burden being placed on councils by the new designation provisions which would allow them only to designate areas that have been associated with disorder and alcohol-related nuisance. Members were very concerned about this fundamental change in policy which would permit persons to drink in designated public places unless asked to stop by a police officer.

133. The Committee examined a proposal to reverse the underlying policy to one whereby councils should designate the places and times where and when drinking should be permitted in public. In these circumstances the policy would be much easier explained and understood by the general public and the consumption of alcohol in certain places (e.g. parks for picnics) or at authorised public events would be permissible.

134. On the question of enforcement, the Committee considered the evidence provided to it and concluded that there should be no change in the Order as drafted. Members felt strongly that tackling the inappropriate use of alcohol in public places should be a policing priority given the threat to community safety and the potential for crime and public disorder arising from this widespread problem. The Committee recommended that responsibility for confiscation of alcohol and fixed penalties should be solely for the police to enforce at this stage. In the Committee’s view given the scale of the problem involving groups of young people it would be unrealistic to expect that a council official could command the same respect as a police officer in approaching such persons.

135. Furthermore the Committee could not agree with the PSNI view that this issue was comparable to the enforcement of smoking, litter, street-trading or dog-fouling provisions. The presence of groups of persons under the influence of alcohol made this a much more serious public-order issue and one that the police need to view as a front-line policing priority. The Committee suggested that the issue should however remain under review and that it might be possible in the future as the stricter laws are enforced and the general public are better educated about the law, for council officials to be more involved in enforcement.

Recommendation

136. The Committee recommends that the Draft Order should be amended to retain the prohibition on drinking in designated public places (as is the case with current bye-laws) but also retaining the proposed new provisions regarding confiscation and fixed penalties; and further recommends that the DSD should examine the operation and effectiveness of the new law, after it has been in operation for one year, and undertake further consultation on whether there should be a wider ban.

Recommendation

137. The Committee recommends that the police should remain primarily responsible for enforcement of the provisions and that the PSNI and the Policing Board should consider making it a policing priority to address the potential for disorder arising from inappropriate drinking in public places.

Prison Security and Offences (Articles 72 to 77)

138. These proposals make a number of changes in relation to prisons, including longer sentences for helping a prisoner escape and for bringing banned items such as alcohol, drugs and mobile phones into a prison. There were no specific concerns raised during evidence to the Committee and the Committee supported these proposals.

Live Links (Articles 78 to 82)

139. The Draft Order gives a court power to give a live link direction (allowing the accused to be treated as present in court when attending via a live link) to certain categories of proceedings: preliminary hearings, sentencing hearings (only where the offender has given his consent) and to appeals under the Criminal Appeal Act.

140. Concerns about these proposals were expressed by NIACRO and NIHRC. NIACRO said that delays in the system that provide for constant remanding and the extended use of live links needed to be addressed. They saw this as an ongoing scandal of the system that affected both victims and offenders. NIACRO objected to the use of live links for sentencing believing that in a small jurisdiction the system should be able to ensure that offenders receive their sentences in person

141. The NIHRC was content with the Draft Order’s provisions in respect of sentencing hearings because in these circumstances the direction of appearance by live link could only be made by the court with the consent of the offender. The Commission’s concern was that this would not be the case in respect of a direction relating to a criminal appeal in the Court of Appeal. While the live link direction could not be made without the parties having an opportunity to make representations, the consent of the offender would not be required. The concern was that a defendant could consequently be denied the opportunity to be present in court in person. NIHRC complained that little evidence was provided by way of rationale for this interference with the long-standing safeguards surrounding the right to a fair trial. The NIO, it said, had cited two reasons: improved security of prisoners and reduction of delays in court hearings relating to transportation of prisoners to the Court of Appeal, but NIHRC said that no statistics had been provided regarding either breaches of prisoner security or court delays.

142. Further concerns were raised by NIHRC in relation to Article 81, which deals with conditions to be met for the giving of evidence by live link by the vulnerable accused. While the Commission considered that attendance by a live link may be in the interests of the vulnerable accused in certain instances (e.g. in a domestic violence case) it contended that in other circumstances, particularly for vulnerable young persons, being alone in a room with a live link might only serve to exacerbate the inability of the accused to fully appreciate the nature of the proceedings. NIHRC urged that more thought should be given to a range of measures to support the vulnerable accused. The Commission’s conclusion was that the proposal to extend the use of live links was mainly a cost-saving exercise that might not serve the interests of justice nor foster respect for the criminal justice system.

143. The NIO provided further information to the Committee about the proposals after hearing the concerns raised. On the question of no right of appearance at an appeal hearing, the NIO confirmed that there is no absolute right to a person being present at an appeal hearing anyway. For example, under the Criminal Appeal (NI) Act 1980, Section 24, a defendant has no right in law to be present if it is on a point of law. He can attend with the Court of Appeal’s consent - but it is not a right of presence. Thus a right to attend in person could not given within the terms of the Draft Order since the right to attend does not exist in underpinning appeal law in the first place. The intention therefore is to preserve the distinction between cases where an appellant is entitled to be present and those where he may attend only with leave.

144. The NIO added that the Court already has an overriding obligation to ensure that an appellant receives a fair hearing in accordance with Article 6 of the European Convention on Human Rights and it was anticipated that the Court of Appeal would always exercise the power in accordance with the interests of justice and the appellant’s right to a fair hearing.

145. Having considered the evidence provided and the further clarification on the proposals and concerns received from the NIO, the Committee supported the live link provisions, but considered that the consent of the offender to a live link direction (as provided in Article 80 on sentencing) should be extended to live links in appeals. Members also considered that further thought should be given to the provisions in respect of vulnerable accused persons under 18 and the specific concerns raised by NIHRC.

Recommendation

146. The Committee recommends that the consent of the offender provision should be extended to any live link direction given in the Court of Appeal.

Recommendation

147. The Committee recommends that the NIO should give further consideration to the operational aspects of the provisions relating to vulnerable accused persons under 18, taking account of the concerns raised by NIHRC, to ensure that the live link procedures do not present any additional barriers to young persons’ needs.

Legal Aid (Articles 83 and 84)

148. The Committee supported the proposal to extend legal aid provisions to anti-social behaviour orders.

Changes to the Police and Criminal Evidence (NI) Order 1989 (Articles 85 to 88)

149. The Committee supported the proposed changes to the police and criminal evidence legislation which:

• provide additional powers of entry for the police to effect an arrest for offences of: common assault; riotous behaviour; harassment; and contravention of a non-molestation order;
• allow the police to attach conditions to bail before charge etc;
• allow changes to police authorisation levels in relation to x-rays in drugs cases or to the investigation of offences or the treatment of persons in police custody.

Penalties (Article 89)

150. The Committee welcomed the doubling of sentences for knife and weapon crimes but it was felt that increasing sentences alone would not be a successful deterrent. There is a view that some young people carry weapons in case they themselves are attacked and that they will make a judgement call on whether the chances of being caught outweigh the chances of being attacked and injured themselves.

151. Members thought that there was a further opportunity now that the law is being changed to send out a really strong message to our young people that they should think seriously about the consequences of carrying weapons because, if caught, the courts would deal with them severely. The Committee considered that this issue could be covered in any media campaign flowing from of the Committee’s recommendation on publicity (see later section on publicity).

Driving Disqualification for any Offence (Article 90)

152. The Committee supported this proposal which provides courts with the power to disqualify an offender from driving on conviction of any offence – not only a motoring offence. Disqualification can be in addition to or instead of any disposal which the court might choose to impose.

Proving Execution of Arrest Warrants (Article 91)

153. These proposals would enable a wider range of magistrates’ courts to hear the proving of the execution of arrest warrants. The powers would enable the execution of those warrants issued by a lay magistrate or resident magistrate or a magistrates’ court in one County Court Division to be proven in a magistrates’ court in the County Court Division of arrest or in a magistrates’ court in a Division adjoining the County Court Division of arrest. The Committee supported these provisions.

Anti-Social Behaviour Orders (Articles 92 to 93)

154. The proposal to allow applications for interim ASBOs to be possible without notice being given to the defendant was opposed by NIHRC. Its representatives said that the proposal merely served to exacerbate the Commission’s existing concerns regarding the granting of ASBOs. The NIHRC acknowledged the existence of precedents for ex parte proceedings in a range of areas of law but indicated that ASBOs were different because ASBO proceedings blurred the division between civil and criminal law.

155. NIHRC was concerned that the odds are very heavily stacked against the person against whom the order is sought, with hearsay evidence being admissible and the normal criminal standard of proof not being applied; and that without an opportunity to present arguments at an interim hearing the likelihood of an inappropriate ASBO being granted would be greatly increased. NIHRC commented that the NIO had proceeded with this proposed extension without any cogent policy rationale or statistical basis. NIHRC also cited a judicial review decision in 2005 in which the issue of the power of a Magistrate to grant an interim ASBO without notice was considered - a resident magistrate’s refusal to grant such an order without notice in the absence of a specific legislative power was upheld.

156. The Committee heard that the NIO and Criminal Justice Inspection had jointly commissioned an evaluation of ASBOs and that the report would be published in the next few months. NIHRC said that seeking to introduce this extension to ASBO powers in advance of the publication of that evaluation would be premature.

157. In the light of the concerns raised, the NIO provided further information to the Committee. The NIO contended that the proposal for ex parte applications was seeking to correct a gap in process that was intended when the Criminal Justice (NI) Order 2004 was being drafted. Referring to the judicial review case, the NIO indicated that the court ruled against a local case for an ASBO without notice and so the gap in the law was now being addressed. The rationale behind the ex-parte proposal, provided by the NIO, is to allow known anti-social behaviour activity to be tackled while a criminal prosecution is being taken. If an interim Order could only be made when the person appeared in court, the culprit could simply avoid it by not turning up and the community that was suffering the behaviour would get no interim relief. The process is designed to help communities to obtain early relief from anyone who actively avoids the system. On a point of accuracy, the NIO confirmed that the criminal standard of proof does apply, and that this had been a matter of case law since the Clingham-McCann judgement from the House of Lords in October 2002.

158. The Committee considered the evidence provided by the various parties but was unable to reach a consensus position on the issue of interim anti-social behaviour orders.

Youth Justice (Articles 94 to 98)

159. In relation to the juvenile justice provisions in Article 95, the Committee received evidence from Criminal Justice Inspection and NIACRO who thought that the Article as drafted put the emphasis the wrong way round as children would be referred to Hydebank Wood Young Offenders Centre where Inspectors regard the regime on offer as gravely inadequate. CJI believed that, on the contrary, the presumption should be that 17- year- old males should be sent to the Juvenile Justice Centre unless either there is no room for them there or they are so difficult to manage that the JJC cannot cope with them. Females under 18 should not, in any circumstances that CJI could envisage, be sent to Ash House. CJI indicated that the situation had improved in relation to 17-year-old girls in that very few had been sent to Ash House over the past year but they wanted to see the same improvement in relation to young males.

160. The NIO agreed with CJI that no female under 18 should be accommodated alongside adult females in a prison environment. The proposed legislation would enable all females under 18 who require custody, either sentenced or on remand, to be held in Woodlands Juvenile Justice Centre (JJC).

161. However, for the following reasons, the NIO did not accept the proposal that all 17-year-old males should be sent to the JJC unless either there is no room for them or they are so difficult to manage that the JJC cannot cope. Foremost amongst these was the fact that the Criminal Justice Review, which looked at this issue in detail, decided that there was greater benefit in having 17-year-olds detained in the Young Offenders Centre (YOC) rather than the JJC. The Review Group considered that 17-year-olds should benefit from the sort of regime which is available at the YOC for young people up to the age of 21, particularly in terms of vocational education and training. They accordingly recommended in Recommendation 172 as follows:

In the particular circumstances of Northern Ireland we recommend that it should continue to be the practice for 17-year-olds to be remanded and sentenced to the young offenders centre. [para. 10.72]

162. In responding to the Criminal Justice Review recommendation however, the NIO indicated that it had gone beyond the simple terms of the recommendation by ensuring that legislative provision was made to protect those 17-year-olds who were particularly vulnerable and for whom the YOC may not be the most appropriate location. Those 17-year-olds who met this criterion would instead be held at the JJC.

163. The NIO explained that it was on the assumption of this legislative and operational regime that the planning and building for the new JJC was based. Following extensive consultation with a range of experts, the new JJC was built with a maximum operating capacity of 48 beds – seen as the optimum size to provide the appropriate regime for those small numbers of children who require custody. A larger unit, along the lines of the Secure Training Centre (STC) model in England, was considered unsuitable to meet the specific needs in Northern Ireland. Given the significantly higher number of 17-year-olds (in relation to other year groups) in the youth justice system, to attempt to accommodate them in the JJC would not only be impracticable but it would also have the effect of skewing the age range disproportionately and thereby distorting the regime for those younger children already accommodated there.

164. The Committee received further evidence from the Prison Service regarding juvenile committals which indicated that the number of juveniles committed to the Young Offenders Centre had decreased significantly over the last two years from around 25 committals per month to less than 5 committals per month currently. The vast majority of committals are males. The Committee concluded that the situation appeared to have changed since the publication of the Criminal Justice Review in 2000 and that in practice juvenile offenders were mostly being referred to the juvenile justice centre.

Recommendation

165. The Committee recommends that the Draft Order be re-examined by the NIO, with further consideration being given to the evidence provided to the Committee, that the presumption should be that 17- year- old males should be sent to the Juvenile Justice Centre unless either there is no room for them there or they are so difficult to manage that the JJC cannot cope with them.

Publicising the Facts and the Changes

166. During the Committee’s deliberations it was suggested that the changes in the law and procedures flowing from the Draft Order would need to be publicised to ensure that the general public (including potential offenders) are aware of the facts and the changes.

167. NIO officials mentioned their plans to use Criminal Justice Week in 2008 to highlight changes in the Multi-Agency Risk Assessment and Management of Sexual and Violent Offenders to help reassure the general public. The Committee supported this proposal but felt there would be an opportunity immediately after the Draft Order becomes law to develop a communications strategy covering a raft of important changes, including for example, the new sentencing, parole and extended supervision arrangements; the new laws on drinking in public; the new test purchase powers to reduce sale of alcohol to minors; new powers in relation to nuisance vehicles; and the new penalties for knife crime.

168. Other issues worth consideration in any publicity drive are the abolition of automatic 50% remission, and no retrospection when the Draft Order is introduced. The general public need to be informed that serious offenders sentenced before the Order becomes law will not be affected (mainly due to legal and human rights issues) but that MASRAM arrangements, curfew, tagging and monitoring may be possible.

169. The Committee considered that there would also be an opportunity to offer some reassurance to the general public by publicising the facts if, for example, our re-conviction rates here are lower than in Great Britain and the Republic of Ireland. Or show-casing best practice where it exists in the justice field.

Recommendation

170. The Committee recommends that the NIO should collaborate with other departments and agencies to develop a Communications Strategy and media campaign(s) to inform the general public about the many changes flowing from the new legislation.

Resourcing the Implementation of the Changes

171. Given the range of issues covered by the Draft Order and the major changes flowing from the proposed new sentencing, licence and supervision arrangements for offenders, the Committee agreed with the views put forward, by most of the organisations that gave evidence, that full and proper implementation would be reliant on adequate resources being made available. The NIO confirmed that approximately £14 million would be made available to criminal justice agencies for implementation of the sentencing provisions but that actual allocation across the three-year period (2008 through to 2011) would be dependent on the pace of implementation.

172. The PBNI indicated that delivery of the new legislation would require a well-resourced probation service and confirmed that it had been involved in all of the discussions and debates about costings. Representatives confirmed that they had lengthy dialogue with the NIO about the resources needed to carry out existing responsibilities and the resources that need to be built up over the next few years to deal with the new legislation.

173. The potential increase in PBNI staff numbers by between 20% and 50% over a short time to cover the new responsibilities would place a strain on the organisation but the organisation had plans to phase its recruitment to meet the anticipated demand.

174. The Director of the Prison Service also confirmed to the Committee that they had worked very closely with the NIO in negotiations around resources needed to implement the proposals. The Prison Service had put an immense amount of work into analysing the ebb and flow of the prisoner numbers, and the costs associated with that, for each of the next 15 years. They were satisfied with the preparatory work done to identify, as best as possible, the cost and implications of the proposals.

175. The Chair of the Life Sentence Review Commissioners also stressed the need for proper resources saying that rehabilitation work with prisoners is extremely demanding of resources, particularly in relation to the deployment of psychologists and probation officers. Prisoner testing in Northern Ireland is inhibited by the absence of an open prison and LSRC panels have been even more heavily dependent on the views of experts than their equivalents in England and Wales.

176. The Chair of LSRC said that a prisoner who does not meet, or is not enabled to meet, the requirement of minimal risk will not have his release directed by the Commissioners. Thus, the Commissioners would be unable to ameliorate resource problems by substituting a less exacting criterion. In addition, apart from possible legal challenge if there is skimping of resources on rehabilitation work, it would not achieve any significant saving if the inevitable consequence were to be the indefinite prolongation of the incarceration of prisoners.

177. It was also accepted during discussions between the Committee and organisations giving evidence that the changes would pose a significant resource problem for the Assembly when criminal justice is devolved.

178. The Committee received an assurance from NIO Officials that they had been working, and continued to work, with the various criminal justice agencies, particularly the probation and prison services, to ensure that the whole system is geared up to cope with implementation of the changes. The NIO also informed the Committee that it would be establishing an implementation team which would be the link with all the agencies, and which will ensure that they are ready to proceed with the changes as soon as they are introduced. The Committee welcomed the proposed establishment of an implementation team to oversee the phased introduction of the legislation and to ensure that resources are allocated as appropriate to the relevant agencies and organisations to facilitate the significant changes covered by the Draft Order.

Recommendation

179. The Committee recommends that the Government continues to liaise closely with the justice agencies to ensure that these important changes continue to be properly resourced in future years beyond the current comprehensive spending review period.

Appendix 1

Minutes of Proceedings

Thursday 22 November 2007
Room 152 Parliament Buildings

Present: Mr Alex Attwood
Ms Carál Ní Chuilín
Mr Stephen Farry
Mr Alban Maginness
Mr John O’Dowd
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Linda Hare, Clerical Supervisor
Ms Jane Hanna, Clerical Officer

Apologies: Mr Danny Kennedy
Mr Raymond McCartney
Mr Ian McCrea
Mr Alan McFarland
Mr David Simpson

4.05pm the meeting opened in private session-the Clerk in the Chair.

1. Apologies

The apologies were noted.

2. Election of Chairperson and Deputy Chairperson

As all Members were unable to attend this first meeting the Clerk proposed, as an interim measure, that a temporary Chairperson be nominated. The Clerk then called for nominations for the position of a temporary Committee Chairperson. Mr Weir proposed Mr Maginness. Mr Farry seconded this proposal and Mr Maginness accepted the nomination.

There being no further nominations the Clerk put the question without debate.

Resolved: That Mr Maginness be temporary Chairperson of this Committee.

Agreed: That a permanent Chairperson and Deputy Chairperson would be elected at the next meeting.

4.07pm. Mr Maginness in the Chair.

Members were asked to note the composition of the Committee membership and the Chairperson and the Clerk introduced the other Committee staff.

Deputies

The Chair advised Members that previous Ad Hoc Committees had allowed Deputies to stand in where Members could not attend. Members agreed that nominated Members should try their best to attend meetings to ensure continuity, especially given the Committee’s very tight timescale, but that Deputies could attend in their place.

3. Declaration of Interests

The Chairperson invited members to declare any interests for the record and to forward their Declaration of Interests in writing to the Committee Clerk.

4. Forward work programme

The Clerk gave a brief outline of the current NIO position in terms of consultation on the Draft Criminal Justice (NI) Order 2007 and the Committee’s role in this. He also advised that Research staff (Ms Carol Doherty and Ms Claire Cassidy) had been asked to produce a paper for Members for the meeting in w/c 3.12.07 outlining the main provisions of the Draft Order and details of public consultations already undertaken on policy issues covered by the Order. The Committee agreed that an oral briefing from research staff on their paper, when completed, would be useful.

The Committee noted a memorandum from the Clerk setting out a proposed forward work programme. The Committee agreed the work programme and that the Clerk would make preliminary contact with the following organisations, with a view to inviting them to give evidence:

• Minister of State and/or NIO Officials
• PSNI possibly in conjunction with Department of the Environment Road Safety Officials
• NIACRO
• Human Rights Commission
• Chair of the Life Sentence Review Commissioners
• Probation Board for Northern Ireland
• Committee on Administration and Justice
• Youth Justice Agency
• Women’s Aid Federation

Action: Clerk

4.30pm Mr O’Dowd Joined the meeting

5. Draft Press Notice

It was agreed that a notice should be placed in the local press seeking written submissions to the Committee by any interested parties. This will appear in the press on Tuesday 27 November 2007, giving a deadline of Monday 10 December 2007 at 12 noon.

6. Any other business

Mr Attwood proposed that the Researchers be asked to highlight the areas within the draft Order that may be most contentious from the perspective of the general public. Members agreed.

7. Date and time of next meeting

Agreed: that it would next meet on Wednesday 28 November 2007 at 2pm. The Venue would be advised.

Agreed: that future meetings will be held on the following dates:

Wednesday 28 November 2pm in Room 135 (not the Senate Chamber as initially indicated)
Wednesday 5 December 2pm Senate Chamber
Wednesday 12 December 2pm Senate Chamber
Tuesday 18 December 2pm Room 144
Thursday 3 January 2pm Room 144
Wednesday 9 January 2pm Senate Chamber
Wednesday 16 January 2pm Senate Chamber

4.40pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA

Chairperson, Ad Hoc Committee

22 November 2007

Wednesday 28 November 2007
Room 135 Parliament Buildings

Present: Mr Alban Maginness
Mr Raymond McCartney
Mr Nelson McCausland (Deputy)
Mr Alan McFarland
Mr John O’Dowd
Mr Jim Wells (Deputy)

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Karen Roy, Clerical Supervisor
Ms Jane Hanna, Clerical Officer
Mr Gareth Johnston, NIO
Mr Tom Haire, NIO
Mr Jim Strain, NIO
Ms Anne O’Connell, NIO
Mr Jake McClure, NIO
Ms Amanda Patterson, NIO

Apologies: Mr Alex Attwood
Mr Ian McCrea
Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Danny Kennedy
Mr David Simpson
Mr Peter Weir

2.07pm the meeting opened in private session-the temporary Chairperson in the Chair.

1. Apologies

The apologies were noted. Mr McCausland attended in place of Mr Simpson, Mr Wells attended in place of Mr McCrea.

2. Election of Chairperson and Deputy Chairperson

The temporary Chairperson called for nominations for the position of a Committee Chairperson. Mr Wells proposed that Mr Maginness be the Chairperson. Mr McFarland seconded this and the nomination was accepted.

On there being no further nominations the temporary Chairperson put the question without debate.

Resolved: That Mr Maginness, being the only candidate proposed, be Chairperson of this Committee.

The Chairperson called for nominations for the position of a Deputy Chairperson. Mr O’Dowd proposed that Mr McCartney be the Deputy Chairperson. Mr McFarland seconded this and the nomination was accepted.

On there being no further nominations the Chairperson put the question without debate.

Resolved: That Mr McCartney, being the only candidate proposed, be Deputy Chairperson of this Committee.

2.14 meeting in Public session

3. Matters Arising

Following last week’s request to invite the Assembly’s Legal Adviser to the Committee, the Chair introduced Mr Hugh Widdis. The Chair advised that, because of his commitments to all parts of the Assembly, Mr Widdis would not be able to attend all meetings but would be available to offer legal advice if and when required.

The Chair informed Members that Mr Paul Goggins, Minister of State had written to the Committee expressing regret that he could not attend the meeting today, but that he would be available at a later date if the Committee required. A copy of the letter was circulated.

4. Declaration of Interests

The Chairperson reminded Members of the need to declare any relevant Interests. Members deputising and those attending their first meeting were asked to submit their interests in writing.

5. Minutes of last meeting

The Committee agreed the minutes of the meeting 22 November 2007 without amendment. They will be published on the website.

6. Briefing by Northern Ireland Office Officials

NIO Officials Gareth Johnston, Tom Haire, Jim Strain, Anne O’Connell, Amanda Patterson and Jake McClure joined the meeting at 2.19pm and gave a presentation on the Draft Criminal Justice (NI) Order 2007. Officials answered a number of questions from Members on the proposed provisions of the Draft Order.

3.30pm Mr O’Dowd Left the meeting

The Chair thanked Mr Johnston and his colleagues for attending the meeting. He advised that the Committee would be taking evidence from a range of organisations between now and 9 January and that the Committee may need to seek clarification from the NIO on other issues which arise. The Chair also informed NIO Officials that Committee meetings would be open to the public and that they might wish to consider having someone present to track proceedings and issues raised.

7. Briefing from Clerk on work programme and future evidence sessions

The Clerk confirmed that a Notice inviting written submissions had appeared in the main newspapers on Tuesday 27 November. The deadline for submissions is Monday 10 December. A copy of the Press Notice is attached.

The Clerk reported that, following publication of the Press Notice, he had received a call from the Criminal Justice Inspection Team to say that they would welcome the opportunity to give evidence to the Committee.

The Clerk gave a brief outline of the position in terms of preliminary contact with the following organisations which had been suggested and agreed by the Committee at its first meeting on 22 November:

• PSNI
• NIACRO
• Human Rights Commission
• Chairperson of Life Sentence Review Commissioners
• Probation Board
• Committee on Administration of Justice
• Department of the Environment, Road Safety Branch
• Youth Justice Agency
• Women’s Aid

There was some discussion among Members about whether oral evidence should be invited from all the organisations proposed or whether the Committee should await receipt of written submissions before deciding those from which oral evidence should be sought. Mr McFarland suggested that oral evidence should be taken only from statutory bodies. The Chair advised that the Committee had agreed at its first meeting to initial contact being made with this list of organisations, inviting them to provide oral evidence. This decision was taken in view of the very tight timescale for completion of the Committee’s remit and the Christmas holidays which would follow very quickly after the deadline for written submissions (10 December).

The Chair advised that the initial invitation to give oral evidence had already been made by the Clerk and could not be rescinded, but that the Committee should wait and see if all the invitations were accepted.

The Clerk advised Members that he would provide, for the next meeting, a schedule indicating which organisations had accepted the invitation to give oral evidence and the dates allocated for same. The Committee agreed that two (or maximum of three) groups giving evidence per meeting would be preferable, with each being allocated about 15 minutes for presentation and 15 minutes for questions and answers.

8. Date and time of next meeting

The Committee agreed that it would meet on Wednesday 5 December 2007 at 2pm in the Senate Chamber.

Future meetings are as follows:

• Wednesday 12 December 2pm Senate Chamber
• Tuesday 18 December 2pm Room 144
• Thursday 3 January 2pm Room 144
• Wednesday 9 January 2pm Senate Chamber
• Wednesday 16 January 2pm Senate Chamber

4.02pm Mr McCausland left the room

4.02pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA

Chairperson, Ad Hoc Committee

28 November 2007

Wednesday 5 December 2007 
Senate Chamber Parliament Buildings

Present: Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Alban Maginness
Mr Raymond McCartney
Mr Alan McFarland
Mr Jim Wells

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Linda Hare, Clerical Supervisor
Ms Jane Hanna, Clerical Officer
Ms Claire Cassidy, Researcher
Ms Carol Doherty, Researcher
Ms Linda MacHugh, DSD Official
Mr Gary McAlorum, DSD Official

Apologies: Mr Alex Attwood
Mr Danny Kennedy
Mr Nelson McCausland
Mr John O’Dowd
Mr Peter Weir

2.07pm the meeting opened in public session Mr Maginness in the Chair.

1. Apologies

The apologies were noted.

2. Minutes of last meeting

The Committee agreed the minutes of the meeting 28 November 2007. They will be published on the website.

3. Matters Arising

The Chair advised that a schedule of proposed future oral evidence sessions would be covered by the Clerk as a separate agenda item later. Mr Wells raised the issue that the Committee had asked NIO Officials to clarify issues relating to the Drinking in Public provisions within the draft Order. The Chair reminded Members that DSD Officials were present today to cover this subject matter.

4. Declaration of Interests

The Chairperson invited Members to declare any amended Declaration of Interests and forward it in writing to the Committee Clerk.

5. Briefing by Northern Ireland Assembly Researchers

The Chair introduced Assembly Researchers Ms Carol Doherty and Ms Claire Cassidy. They gave a presentation on the provisions of the draft Order and in particular highlighted issues of concern to the public which had been raised during the various consultation exercises that preceded publication of this draft Order. A question and answer session ensued. The Chair proposed and Members agreed to seek clarification from NIO on the following points:

• An explanation of which type of crime may attract a Life sentence, ICS or ECS tariff and the options available to courts in different circumstances.
• Clarification on what type of Supervised Activity Orders may be envisaged for Rules.
• Clarification on when remission may be granted, and who directs the process.
• Clarification on any offences which may relate to the passengers in a stolen (or run-around) vehicle.

The Chair proposed and Members agreed that the Clerk would invite representatives from the NI Prison Service to provide oral evidence, to seek clarification on the impact the proposed draft Order would have on the current Prison accommodation and population..

The Chair also asked the Clerk to seek some clarification around the provisions in Article 15 regarding mentally disordered offenders.

6. Briefing by Department for Social Development

DSD Officials Ms Linda MacHugh and Mr Gary McAlorum joined the meeting at 3.20pm and gave a presentation on the Alcohol in Designated Public Places provisions contained in the Draft Order. Officials then answered questions from Members on the proposals.

3.40pm Ms Ní Chuilín left the meeting.

7. Responses to Press Notice

The Chair referred Members to a submission from Criminal Justice Inspection Northern Ireland (CJINI). Members agreed to invite the CJI to give evidence on 12 December 2007.

8. Briefing from Clerk on future evidence sessions

The Clerk referred to the table of proposed future evidence sessions involving the following organisations:

• Probation Board
• Chairperson of Life Sentence Review Commission
• Department of the Environment Road Safety Branch and PSNI (joint presentation on road traffic offences)
• NIACRO
• Human Rights Commission

The Chair informed Members that the Youth Justice Agency had declined the invitation to provide oral evidence, but the others listed had accepted the invitation. The Committee agreed to the schedule of oral evidence sessions at the Annex. Mr Farry suggested that as the organisations being invited were statutory bodies, the Committee should also take evidence from an organisation representing victims. The Chair proposed and Members agreed that the Clerk should invite Victim Support to give oral evidence.

9. Any other Business

The Chair informed members that NIO Officials had clarified the query relating to 135 days as set out in Article 20(2) of the draft Order. The advice was that the 135 days is the England and Wales base level for their equivalent release scheme. It has its origins in a minimum 18-month sentence that allowed “normal” release at the halfway point (9 months). The prisoner could still get conditioned early release on a curfew/tag halfway through that 9 month period, so could be eligible at 4 and a half months, or 135 days.

The NIO view is that they should consult on the same provisions as E&W and take public views as to the appropriateness of what appeared to be a reasonable period to serve before being considered for conditioned early release.

10. Date and time of next meeting

The Committee agreed that it would meet on Wednesday 12 December 2007 at 2pm in the Senate Chamber. Members agreed they would not meet on 3 January 2008.

Future meetings are as follows:

• Tuesday 18 December 2pm Room 144
• Wednesday 9 January 2pm Senate Chamber
• Wednesday 16 January 2pm Senate Chamber

4.07pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA
Chairperson, Ad Hoc Committee

5 December 2007

Schedule of Future Meetings

To Note: Youth Justice Agency will not be giving oral evidence to the Committee.

Wednesday 12 December 2007 
Senate Chamber Parliament Buildings

Present: Mr Alban Maginness (Chair)
Mr Alex Attwood
Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Simon Hamilton (Deputising for Mr McCausland)
Mr Raymond McCartney (Deputy Chair)
Mr Alan McFarland
Mr Jim Wells
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Karen Roy, Clerical Supervisor
Ms Jane Hanna, Clerical Officer
Mr Brian McCaughey, PBNI
Mr Ronnie Spence, PBNI
Ms Cheryl Lamont, PBNI
Ms Louise Cooper, PBNI
Mr Graham Kelly, PBNI
Mr Kit Chivers, CJINI
Mr Brendan McGuigan, CJINI
Mr Tom McGonigle, CJINI

Apologies: Mr Danny Kennedy
Mr Nelson McCausland
Mr John O’Dowd

2.10pm the meeting opened in public session Mr Maginness in the Chair.

1. Apologies

The apologies were noted. Mr Hamilton attended the meeting in place of Mr McCausland.

2.12pm Mr McCartney joined the meeting

2. Minutes of last meeting

The Committee agreed the minutes of the meeting 5 December 2007. They will be published on the website.

2.15pm Dr Farry joined the meeting

2.15pm Ms Ní Chuilín joined the meeting

3. Matters Arising

The Chair informed Members that the NIO had clarified a number of issues following the last meeting. The NIO response was included at Tab 2 of Members’ packs. It included an easy-read chart relating to sentencing disposals (see Annex 2 to these minutes). The Committee staff had added a flowchart also for the benefit of Members (see also Annex 2).

The Chairperson informed members that, following last week’s meeting, and in view of the logistical problems raised by DSD around enforcement of the Drinking in Public Provisions, the Clerk had been asked to contact PSNI seeking an official line from them regarding their role. The Chair advised that the Committee should await the official PSNI written response.

4. Declaration of Interests

The Chair invited Members to declare any amended Declaration of Interests and forward it in writing to the Committee Clerk.

5. Briefing by Probation Board Northern Ireland

The Chair introduced the Probation Board Chairman Mr Ronnie Spence, Chief Probation Officer Mr Brian McCaughey, Ms Cheryl Lamont, Deputy Chief Probation Officer, Ms Louise Cooper, Head of Information & Research and Mr Graham Kelly. They gave a presentation to Members, highlighting the proposed provisions they support and any concerns held. A question and answer session followed.

6. Briefing by Criminal Justice Inspection Team Northern Ireland

The Chair introduced Mr Kit Chivers, Chief Inspector, Mr Brendan McGuigan, Deputy Chief Inspector and Mr Tom McGonigle of the Criminal Justice Team. They gave a presentation to Members, highlighting the proposed provisions they support and any concerns held. A question and answer session followed.

3.40pm Ms Ní Chuilín left the meeting

7. Briefing from Clerk on future evidence sessions

The Clerk informed Members that the closing date for responses to the Committee’s Public Notice was 10 December 2007.

The Clerk confirmed that contact had been made with the Prison Service NI who are expected to attend the meeting on 9 January 2008. Victim Support NI declined the invitation to provide oral evidence but will forward a written submission. PSNI are now unable to attend the meeting on 18 December although DOE Officials will fully represent their views on the proposed provisions relating to driving offences. The Chair proposed and Members agreed that the PSNI should be invited to a future meeting to address Members’ concerns relating to alcohol consumption in public and the use of quad bikes. The Clerk outlined all future evidence sessions, See Annex 1.

8. Any other Business

The Chair informed Members that they had received copies of Hansard from the meeting of 28 November and 5 December and to forward any corrections to the Clerk.

The Chair informed Members that following oral evidence at the meeting on 18 December 30 minutes would be allocated in closed session to discuss the Committee’s initial views on the Draft Order and any emerging concerns or recommendations that Members may have for inclusion in the Committee Report.

The Chair reminded Members there would be no meeting on 3 January 2008 as previously agreed.

9. Date and time of next meeting

The Committee agreed that it would meet on Tuesday 18 December 2007 at 2pm in room 144.

Future meetings are as follows:

Wednesday 9 January 2pm Senate Chamber

Wednesday 16 January 2pm Senate Chamber

3.55pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA

Chairperson, Ad Hoc Committee
12 December 2007

Annex 1

Schedule of Future Evidence Sessions

To Note:

Youth Justice Agency will not be giving oral evidence to the Committee.

Victim Support will forward a written submission.

PSNI cannot attend 18 December, DOE will fully represent their views in relation to Driving Offences provisions within the draft Order.

Annex 2

Is it the court that decides when passing sentence what the remission/period on licence shall be?

The period on licence should not be equated to remission. Under the draft Order, the current standard sentence of imprisonment is replaced with a single determinate sentence comprising two distinct parts – a custodial term followed by a period of compulsory post-release supervision. The court decides when sentencing an offender what the custodial period shall be and what the licence period shall be. The offender serves the sentence in full.

When sentencing an offender to an ECS (Article 5), the court imposes a custodial sentence and an extended licence period. The offender is considered for release, by the Parole Commissioners, at the halfway point of the custodial sentence, but could, if necessary for the protection of the public, be detained in custody until the end of the custodial sentence. On release the offender is subject to licence conditions for any period remaining of the custodial sentence plus the period of extended licence determined by the court. If recalled, the offender could be detained in custody until the end of the extended licence period

When sentencing an offender to an ICS (Article 4), the court sets a minimum term which must be served in full before the offender can be considered for release. An ICS sentenced offender may be detained indefinitely and will be released on licence only when the Parole Commissioners direct. An ICS licence then lasts for the duration of the offender’s life unless he successfully applies to have it terminated after a qualifying period of 10 years after release.

Can you confirm that Art 15 is a direct lift from the CJ (NI) Order 1996 and that there are no new provisions here re Mentally Disordered Offenders?

There are no new provisions in Article 15 – it is a replica of Article 22 of the Criminal Justice (Northern Ireland) Order 1996 with the technical addition of paragraph 5 to define ‘mentally disordered’. This definition is taken from the Interpretation (Article 2) in the 1996 Order.

Supervised Activity Orders - what type of activities are envisaged for Rules under para 6 of sch 3. One Member hoped they would be effective deterrents - not flower-arranging and pottery- but could be linked in some way to the offence (removing graffiti for a graffiti offence?)

At this stage we would envisage the activities spanning a range of options: work related; training and educational; and community service style activities. We need to ensure that activities can be tailored to individual circumstances. The detail will be developed in light of consultation and with relevant authorities.

“Road traffic Offences - Do any of these new provisions cover so called joy-riders or runarounds? Some members also raised a question around - are passengers in such vehicles also liable to prosecution?”

The answer is yes if the vehicle is being driven in a manner which is causing or is likely to cause alarm, distress or annoyance to members of the public but this is an overlay on the fact that joy riders and persons driving run arounds will have committed a number of other offences.

With the joy riders they have committed an offence under section 12 of the Theft Act (Northern Ireland) 1969 which currently carries a maximum penalty of 3 years imprisonment it is also an offence for someone to allow themselves to be conveyed in a car which is being used for joy riding.

In relation to run-arounds, and this would again also apply to the joy riding, the drivers will normally not have licences, insurances or tax and will be committing all those offences. If the run around is not stolen it will not be an offence for the passenger who is carried in it and the same for the vehicle causing alarm, distress or annoyance to members of the public but that is with the qualification that if the passenger is inciting the bad driving which causes the alarm, distress or annoyance then he will also be party to the principal offences under Articles 12 (Careless and Inconsiderate Driving) or 48 (of Road Driving) of the Road Traffic (Northern Ireland) Order 1995 and as an accessory to the offence could be prosecuted.

How the court should decide which sentencing disposals in the draft Order to use on conviction

NIO Response to queries from the Ad-Hoc Committee on the draft Criminal Justice (Northern Ireland) Order

Chart of how the court should decide which sentencing disposals in the draft Order to use on conviction:

1. Does the offence attract a mandatory life sentence?

a. Yes: issue a life sentence

b. No: go to 2

2. Is a life sentence penalty available for the offence?

a. Yes: Does the offence merit a life sentence by virtue of the seriousness of the offence?

i. Yes: issue a life sentence

ii. No: go to 3

b. No: go to 3

3. Is the offence a specified offence? (i.e. one of the offences listed in Schedule 2)?

a. Yes: go to 4.

b. No: go to 9.

4. Does the offender offer a significant risk of serious harm to the public?

a. Yes: go to 5.

b. No: go to 9.

5. Is the specified offence also a serious offence (i.e. listed in Schedule 1)?

a. Yes: go to 6.

b. No: go to 7.

6. Would an ECS sentence be adequate to protect the public from serious harm?

a. Yes: go to 7.

b. No: go to 8.

7. Issue an ECS.

8. Issue an ICS.

9. Does the offence merit a custodial sentence?

a. Yes: issue a standard determinate sentence

b. No: issue a non-custodial disposal.

Tuesday 18 December 2007
Room 144 Parliament Buildings

Present: Mr Alex Attwood
Mr Alban Maginness (Chair)
Mr Raymond McCartney (Deputy Chair)
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd 
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Linda Hare, Clerical Supervisor
Ms Jane Hanna, Clerical Officer 
Mr Peter Smith QC, LSRC
Mr John McMullan, DOE
Mr Harry Green, DOE

Apologies: Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Danny Kennedy 
Mr Jim Wells

2.10pm the meeting opened in public session Mr Maginness in the Chair.

1. Apologies

The apologies were noted.

2. Minutes of last meeting

The Committee agreed the minutes of the meeting 12 December 2007. They will be published on the website.

3. Matters Arising

A query had been raised at the last meeting in relation to the circumstances in which a discretionary life sentence or one of the new sentences (ICS or ECS) could be imposed. The clerk read the clarification received from NIO.

NIO also confirmed that when the Order is laid in Westminster it will be accompanied by an Explanatory document.

4. Declaration of Interests

The Chairperson invited Members to declare any amended Declaration of Interests and forward it in writing to the Committee Clerk.

2.15pm Mr McCausland Joined the meeting

5. Oral Evidence Session - Chair of Life Sentence Review Commissioners

The Chair introduced Mr Peter Smith QC, Chairperson of the Life Sentence Review Commissioners. He gave a presentation to Members, highlighting his views on the impact of the proposed provisions relating to the Parole Commissioners. A question and answer session followed.

6. Briefing by Department of the Environment

DOE Officials Mr John McMullan and Mr Harry Green a presentation on the Driving Offences provisions contained in the Draft Order. Officials then answered questions from Members on the proposals.

7. Briefing from Clerk on future evidence sessions

The Clerk informed Members he had written to Assistant Chief Constable Ray Toner requesting that PSNI representatives attend the meeting on 9 January to deal with Drinking in Public Places provisions; and Road Traffic Offences. Members received a copy of the letter.

The Clerk informed Members that NIACRO, Human Rights Commission, Prison Service and PSNI would be attending the final evidence session on 9 January 2008 (Annex 1).

3.30 pm Closed Session

8. Discussion on possible recommendations for draft report

Members discussed initial views on the possible content of the Committee Report.

9. Date and time of next meeting

The Committee agreed that it would meet on Wednesday 9 January 2008 at 2pm in the Senate Chamber.

Future meetings are as follows:

Wednesday 16 January 2pm Senate Chamber

4.20pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA
Chairperson, Ad Hoc Committee
18 December 2007

Annex 1

Schedule of Future Evidence Sessions

To Note:

Youth Justice Agency will not be giving oral evidence to the Committee.

Victim Support will forward a written submission.

Wednesday 9 January 2008 
Senate Chamber Parliament Buildings

Present: Mr Alex Attwood
Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Alban Maginness (Chair)
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd 
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Karen Roy, Clerical Supervisor
Ms Jane Hanna, Clerical Officer
Ms Olwen Lyner, NIACRO
Mr Pat Conway, NIACRO
Prof Monica McWilliams,NIHRC
Ms Anne Hope, NIHRC
Dr Nazia Latif, NIHRC
Ms Denise Magill, NIHRC
Mr Robin Masefield, Prison Service
Mr Eddie Finn, Prison Service
Mr Brian Ingram, Prison Service
Superintendent David Boyd, PSNI
Inspector Rosie Leech, PSNI
Inspector Gary Atkinson, PSNI
Mr John Connor, PSNI

Apologies: Mr Danny Kennedy 
Mr Raymond McCartney (Deputy Chair)
Mr Jim Wells

2.07pm the meeting opened in public session Mr Maginness in the Chair.

1. Apologies

The apologies were noted.

2. Minutes of last meeting

The Committee agreed the minutes of the meeting 18 December 2007. They will be published on the website.

3. Matters Arising

The Clerk informed Members that the Chair of the Life Sentence Review Commissioners had been contacted regarding hours worked by commissioners on average and a response would be provided by end of this week.

The Clerk also informed Members that the NIO had responded to the Committee query in relation to the Comprehensive Spending Review (CSR) 2007 bid to cover implementation of the Order. The NIO had provided the following information: Over CSR 07, approximately £14 million will be made available to Criminal Justice Agencies for implementation of the sentencing provisions. How this is allocated across the CSR07 period (2008 through to 2011) will be dependent on the pace of implementation.

4. Declaration of Interests

The Chairperson reminded Members that any amended Declaration of Interests should be forwarded in writing to the Committee Clerk.

5. Oral Evidence Session - Northern Ireland Association for the Care and Resettlement of Offenders

The Chair introduced Ms Olwen Lyner and Mr Pat Conway from the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO). They gave a presentation to Members, highlighting the provisions the Association supported and its concerns. A question and answer session followed.

6. Oral Evidence Session - Human Rights Commission

The Chair introduced Prof Monica McWilliams, Ms Anne Hope, Dr Nazia Latif and Ms Denise Magill from the Northern Ireland Human Rights Commission (NIHRC). They gave a presentation to Members, highlighting the Commission’s concerns regarding specific provisions. A question and answer session followed.

7. Oral Evidence Session - Northern Ireland Prison Service

The Chair introduced Mr Robin Masefield, Mr Eddie Finn and Mr Brian Ingram from the Northern Ireland Prison Service. They gave a presentation to Members on the current transition of the prison service and the likely impact of the draft Order’s provisions. A question and answer session followed.

8. Oral Evidence Session - Police Service of Northern Ireland

The Chair introduced Superintendent David Boyd, Inspector Rosie Leech, Inspector Gary Atkinson and Mr John Connor from the Police Service of Northern Ireland. They gave a presentation to Members on the PSNI’s position on proposals regarding consumption of alcohol in designated public places and the seizure of nuisance vehicles such as mini-scooters. A question and answer session followed.

4.46 pm Closed Session

9. Discussion on possible recommendations for draft report

Members discussed the possible content of the Committee Report.

4.55pm Ms Ní Chuilín left the meeting

10. Any other Business

Members agreed the Motion to be forwarded to the Business Committee for the debate on the Committee’s report.

11. Date and time of next meeting

The Committee agreed that it would meet on Wednesday 16 January 2008 at 2pm in the Senate Chamber.

4.57pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA
Chairperson, Ad Hoc Committee
9 January 2008

Wednesday 16 January 2008 
Room 152 Parliament Buildings

Present: Mr Alex Attwood
Dr Stephen Farry
Mr Alban Maginness (Chairperson)
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Karen Roy, Clerical Supervisor

Apologies: Ms Carál Ní Chuilín
Mr Danny Kennedy
Mr Raymond McCartney (Deputy Chairperson)
Mr Jim Wells

2.15pm the meeting opened in private session Mr Maginness in the Chair.

1. Apologies

The apologies were noted.

2. Minutes of last meeting

The Committee agreed the minutes of the meeting 9 January 2008. They will be published on the website.

The Committee agreed that an extract of today’s Minutes of Proceedings should be included in Appendix 1 of the report and were content that the Chairperson agrees the minutes relating to this to allow them to be included in the printed report.

3. Matters Arising

The Chairperson informed Members that the Life Sentence Review Commissioners had forwarded details of hours worked by individual Commissioners, the paper was distributed to Members.

4. Declaration of Interests

The Chairperson reminded Members that any amended Declaration of Interests should be forwarded in writing to the Committee Clerk.

5. Consideration of Draft Report

The Chairperson informed Members that, following the last meeting, the Northern Ireland Human Rights Commission had submitted two papers which had been copied to Members. An additional paper had also been received from Mr Robin Masefield, Director of the Prison Service, clarifying issues raised during his evidence on 9 January 2008. All three papers would be included in the Committee Report as written evidence.

The Committee considered the Conclusion and Recommendations section of the Draft Report paragraph by paragraph. The Committee agreed the bulk of this section, with some amendments and adjustments. There were some parts where agreement was not reached and Members agreed to meet again on Monday 21 January at 8.30a.m. to discuss and make a final decision on these specific parts. In the meantime it was agreed that the Clerk should produce a final draft of the Report, taking account of the Committee’s decisions and suggestions and email a copy to Members on Friday 18 January.

4.10pm Mr McCausland left the meeting

4.22pm Mr McFarland left the meeting

4.40pm Mr Attwood left the meeting

4.40pm the Chairperson adjourned the meeting.

Mr Alban Maginness MLA
Chairperson, Ad Hoc Committee
16 January 2008

Monday 21 January 2008
Room 21 Parliament Buildings

Present: Mr Alex Attwood
Ms Carál Ní Chuilín
Dr Stephen Farry
Mr Alban Maginness (Chairperson)
Mr Nelson McCausland
Mr Alan McFarland
Mr Jim Wells
Mr Peter Weir

Attendees: Mr Kevin Shiels, Committee Clerk
Ms Roisin Fleetham, Assistant Clerk
Ms Jane Hanna, Clerical Officer

Apologies: Mr Danny Kennedy
Mr Raymond McCartney (Deputy Chairperson)
Mr John O’Dowd

8.45am the meeting opened in private session Mr Maginness in the Chair.

1. Apologies

The apologies were noted.

2. Minutes of today’s meeting

The Committee agreed that an extract of today’s Minutes of Proceedings should be included in Appendix 1 of the report and were content that the Chairperson agrees the minutes relating to this to allow them to be included in the printed report.

3. Consideration of Draft Report

9.05am Mr McCausland joined the meeting

9.15am Mr Wells joined the meeting

The Chair informed Members that following last week’s meeting the Clerk sourced the Guidelines used by the Scottish Government in relation to the use of children in test purchases of alcohol. The guidelines are attached at Annex 1.

The Committee considered the Draft Report on the Draft Criminal Justice (Northern Ireland) Order 2007, paragraph by paragraph. The Committee agreed the main body of the report:

Paragraphs 1 - 14, read and agreed

Paragraphs 15 - 49, read and agreed

Paragraphs 50 - 54, read and agreed

Paragraphs 55 - 68, read and agreed

Paragraphs 69 - 83, read and agreed

Paragraphs 84 - 88, read and agreed

Paragraphs 89 - 103, read and agreed

Paragraphs 104 - 138, read and agreed

Paragraphs 139 - 152, read and agreed

Paragraphs 153 - 157, read and agreed

Paragraphs 158 - 164, read and agreed

Paragraphs 165 to end, read and agreed

The Committee agreed that Appendices 1 to 4 be included in the report.

The Committee ordered the Report on Draft Criminal Justice (Northern Ireland) Order 2007 (14/07/08R) to be printed.

9.30am Dr Farry left the meeting

9.43am Mr Wells left the meeting

10.10 am the Chairperson adjourned the meeting.

Mr Alban Maginness MLA
Chairperson, Ad Hoc Committee
21 January 2008

Appendix 2

Minutes of Evidence
28 November 2007

Members present for all or part of the proceedings:
Mr Alban Maginness (The Chairperson)
Mr Raymond McCartney (The Deputy Chairperson)
Mr Danny Kennedy
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Jim Wells

Witnesses:

1. The Chairperson (Mr A Maginness): I welcome the witnesses to the Ad Hoc Committee. I am pleased to see such a fine, large delegation, and I look forward to working with you this afternoon. I believe that Mr Gareth Johnston is the leader on the matter.

2. I ask the witnesses to turn off their mobiles, as they interfere with recording.

3. Mr Johnston, will you introduce your team?

4. Mr Gareth Johnston (Northern Ireland Office): I apologise that we are a cast of thousands this afternoon, but that says something about the breadth of the draft Criminal Justice (NI) Order 2007 and the range of interests that are involved. Thank you very much for your invitation to meet the Committee.

5. I am Gareth Johnston and I have been deputy director of criminal justice at the Northern Ireland Office (NIO) for the past three weeks, so I am grateful to have the support of my colleagues.

6. On my left is Tom Haire, who heads our criminal law branch and who has been co-ordinating the legislation. On my right are Jim Strain, who is our legal adviser, and Anne O’Connell, who has been working on many of the practical aspects of the legislation. As the discussion proceeds, we may call others, and I will ask them to introduce themselves.

7. A couple of weeks ago, Paul Goggins, the Minister of State with responsibility for criminal justice, informally briefed some Members on the draft Order. He sends his apologies; unfortunately, he is unable to attend today due to diary commitments. The Committee was keen to start work on the matter, and, as a result, there was limited notice for him to attend. However, he has asked me to say that he is more than happy to assist the Committee in other ways; for example, by supplying further information.

8. The Chairperson: Thank you. We understand that he has previous commitments, and his letter has been noted. We appreciate his general goodwill towards our work and acknowledge his intention of speaking to the Committee if necessary.

9. Mr Johnston: He recognises the value and importance of this dialogue, especially when we are considering the devolution of policing and justice.

10. I propose to begin with a brief overview about how we reached the point of having draft legislation. Tom Haire will then take us through parts 2 and 3 of the draft Order on sentencing provisions and the assessment and management of offenders. That might provide an opportunity to deal with questions on sentencing and offenders before we move to road traffic offences and, finally, to alcohol provisions and knife crime.

11. The Chairperson: That is sensible; it will be more manageable to do it that way. We can have questions and answers at the end of each section.

12. Mr Johnston: The proposals on the sentencing framework, knife crime and road traffic offences were subject to extensive public consultation. We have worked closely with colleagues from the Department of the Environment (DOE) on road traffic offences and with colleagues from the Department for Social Development (DSD), who reviewed the drinking in public by-laws separately from those two exercises. We have brought all the information together into the draft Order. I realise that members would have preferred us to have reached this stage sooner; that point was made in correspondence and very firmly in the media.

13. The review was substantial and covered the whole gamut of custodial sentences. It fed into the lengthiest criminal justice Order that has ever been introduced in Northern Ireland. The Minister appreciates that there are still concerns about the timescale, but our concern is to ensure that we get the legislation right. Nevertheless, the Minister intends to commence the most significant part of the Order, which deals with sexual and violent offenders, within weeks of its becoming law.

14. Four key purposes inform the Order. The first provides enhanced public protection, and that is informed by the provisions on sentencing, in particular. Secondly, we are considering improving provision for the management of dangerous offenders. Thirdly, we are aiming at improving the supervision and rehabilitation of offenders in the community. Fourthly, we want to enhance public confidence in the criminal justice system.

15. The draft Order begins with a range of new sentencing provisions — a completely restructured sentencing framework — with public protection very much at its core. The aim is to address offending at all levels of the offender population. It will end automatic 50% remission for all sentenced prisoners. It will introduce new types of sentences for dangerous, violent and sexual offenders — the indeterminate custodial sentence (ICS) and the extended custodial sentence (ECS). For ordinary offenders, there is a new form of standard custody where people will serve the full term of custody that the court has set, but, afterwards, they will be subject to a period of compulsory supervision on licence, ultimately with the threat of recall to prison if the licence conditions are breached. We will say more in a moment about the detail of those new sentences.

16. The issues in the draft Order range from making custodial sentences more effective to providing alternatives to the judiciary in cases where there is limited risk or where custody is not the best way to deal with an offender — curfew powers and electronic monitoring could be used instead of people having to remain custody. There are also community alternatives to custody for those who default on fines and who rarely present a significant risk to the community. Those are different and, one hopes, more effective ways of dealing with fine default. The draft Order thus addresses both ends of the offending spectrum.

17. The provisions to tackle knife crime, new road traffic offences and provisions on drinking in public are all aimed at improving community safety. There are also practical changes, such as the provision of video links for certain types of hearings and changes in how arrest warrants are approved. Those practical changes can improve the efficiency of the system and reduce delays, but they remain fair to those involved.

18. We are interested in hearing members’ views on the new provisions. The draft Order was laid in Parliament on 8 November 2007 under the Northern Ireland Act 1998 and was referred to the Committee at the same time. The statutory consultation period ends on 31 January 2008, at which point we will take into account the views that have been expressed. The NIO will try to work in parallel with the consultation process so that we can begin to consider those views before 31 January 2008. Our aim is to respond to the consultation and have the draft Order debated in Parliament as quickly as possible. For instance, we are considering issues that were raised in the informal briefing a couple of weeks ago.

19. Parliament will then be asked to approve the draft Order, which will contain amendments to the one that the Committee has before it today.

20. The Chairperson: Technically, amendments cannot be made in Parliament; they must be made before that point.

21. Mr Johnston: That is correct. Amendments must be made before the version that we want to be debated is laid before Parliament. When we have considered the consultation proposals and have incorporated the amendments into the draft Order, the final version will be laid before Parliament for a second time and will be subject to debate in both Houses. We hope that the draft Order will be approved and given Royal Assent.

22. We look forward to engaging with the Assembly on this. I know that the Minister and we, as officials, consider this to be a particularly important aspect of the consultation. Having incorporated such changes as are proposed in the consultation exercise, we hope that the draft Order will become law by the end of March 2008. There is a commitment to implement the most urgent provisions within weeks of that date.

23. The implementation will involve significant work, and I assure the Committee that the NIO has been working, and continues to work, with the various criminal justice agencies that will be involved, particularly the probation and prison services, to ensure that the whole system is geared up to cope with implementation.

24. Mr Chairman, if you are content, I will hand over to Tom Haire, who will go into more detail on sentencing.

25. Mr Tom Haire (Northern Ireland Office): I will take the Committee through the sentencing parts of the draft Order. Some may not follow in sequence, but it is sometimes better to deal with management provisions or the management of sex offenders together. If the Committee is content, I will deal with custodial sentencing before moving on to multi-agency procedures for the assessment and management of sex offenders (MASRAM) and non-custodial sentencing.

26. As Gareth said, the proposed changes to custodial sentencing deal with two main areas. The first is the public-protection package, which deals with dangerous, sexual and violent offenders; the second is the adjustment of the standard form of imprisonment to abolish 50% remission. New release and recall arrangements have been proposed for both packages, and it is probably worth describing them along with the new types of sentences.

27. Beginning with custodial sentencing and public-protection measures, two types of sentence are proposed: the indeterminate custodial sentence and the extended custodial sentence. Those are defined in articles 4 and 5 of the draft Order, and it is worth examining them in a little detail. The article that deals with dangerous offenders begins by defining specified offences, meaning the sorts of offences that can attract the proposed new disposals. Those offences are listed in schedules to the draft Order. For example, one schedule details serious offences, which can attract an ICS or, indeed, an ECS. Another schedule details specified offences, and there is a complicated reason for such an overlap between the two types of sentence. I am sure that Anne O’Connell will be able to help me on that point. However, the schedules define the offences that attract the public-protection sentences.

28. If an offender has been assessed as dangerous on account of having committed a serious and specified crime that carries a maximum penalty of 10 years or more, they can be given a discretionary life sentence. That option is still available to the courts. However, he or she can be given either an indeterminate custodial sentence or an extended custodial sentence. The ICS carries a minimum tariff of two years. Under an ICS, the prisoner is sentenced, receives a tariff that they must serve without remission, and the case is then reviewed by the parole commissioners, a body that the draft Order will create for risk-assessment purposes and for making decisions on prisoner release. The ICS is based on an offence that carries a maximum penalty of 10 years or more. If the courts think that an extended custodial sentence is appropriate, they can choose that option; they will have the discretion to choose between an ECS and an ICS. Article 4 of the draft Order describes the circumstances in which the court can choose, if appropriate, an ECS instead of an ICS.

29. The extended custodial sentence has been designed for an offender whose sentence carries a maximum penalty of less than 10 years. The sentencing arrangements for that are slightly different. The minimum custodial period for an ECS is one year, and the courts define the minimum custodial sentence. For the sake of argument, if the court imposed an ECS of four years, it would also have to specify a one-year minimum custodial sentence at the very least; if the court specified a two-year sentence, the prisoner could be referred to the parole commissioners for a decision on release halfway through those two years. If the commissioners do not direct a release, the prisoner must serve out the full two years, after which they are released automatically, with the two years being added to their licence. Therefore the prisoner can have an extended licence period up to final release.

30. The assessment of dangerousness is included in chapter 1 of the Order and is based on reports that are prepared for the court before sentence is imposed. In other words, if the offender was convicted of a serious or specified offence, the court would commission reports on the assessment of his or her dangerousness. If the convicted person is deemed to be dangerous, he or she could receive a public-protection sentence; if he or she is not deemed to be dangerous on the basis of those reports, he or she would receive a standard sentence of imprisonment or community disposal. The assessment of dangerousness is one of the key factors that determine whether a public protection sentence is imposed. Those are the basic facts of the public-protection regime.

31. The second form of custodial sentence is the change to the standard form of imprisonment. As Gareth said, the new form of imprisonment will lead to the court announcing the custodial part, which is served in full, and the license period, which must be served afterwards. Therefore the whole sentence must be served, and there is no 50% remission on the custodial part.

32. The standard form of imprisonment in the proposals has two slight variations. If the sentence is of 12 months or less, the court will direct the licence conditions, because the Secretary of State must impose those conditions on the prisoner’s release. If the sentence is of 12 months or more, the court will recommend licence conditions that the Secretary of State will take into consideration when he sets the licence on release. The person sentenced to the standard form of imprisonment serves both the custody part and the licence part in full. The licence is imposed by the Secretary of State, either on the direction of the court or on its recommendation, depending on whether the sentence was for less than 12 months or for 12 months or more. That is the new standard form of imprisonment.

33. To move on to the release and recall arrangements for the ICS — slipping back to the public-protection sentences — once the parole commissioners are content that a prisoner does not present a serious risk to the public, they can recommend that he or she be released and the Secretary of State must follow that recommendation. If a prisoner is not recommended for release, he or she is not released and has a guaranteed re-review date of two years.

34. The ECS has two possible release points: the first is halfway through the custody part when the parole commissioners can direct release; the second is on completion of the full-custody part, when the prisoner must be released on Secretary of State’s licence.

35. For standard-imprisonment cases, once a prisoner reaches the end of the custody part, as determined by the court, the Secretary of State must release that prisoner on licence, setting the licence conditions in compliance with the court’s direction or, for longer sentences, on its recommendation. The parole commissioners are involved in public-protection sentences, but not for the standard-imprisonment sentences.

36. However, any prisoners out on licence who are recalled to prison by the Secretary of State — for failure to comply, for example — are referred to the parole commissioners for review and recommendation direction. Any public-protection sentence prisoners who are recalled feed back into the re-review mechanism for a risk assessment at different points. It is slightly different for any standard-imprisonment sentence prisoners who are recalled. Since it is a determinate sentence, the parole commissioners can, in reviewing the case, set prospective release dates.

37. That is an overview of the custodial-sentencing review and release measures.

38. The Chairperson: That is an appropriate point at which to ask questions. Essentially you are saying that the system for dealing with serious offences is changing radically and that there will be, under what you term “public protection”, two ways of dealing with offenders. There will be indeterminate custodial sentences or extended custodial sentences. In simple terms, what is the essential difference between the two?

39. Mr Haire: A prisoner given an indeterminate sentence could, in theory, be in prison for good or until they prove that they are no longer a danger to the community. A prisoner given an extended custodial sentence will have a guaranteed release date.

40. Mr Wells: Did the witnesses get permission from the Parades Commission before they came here today? It is intimidating to have 15 officials present for one issue; you are obviously well read on the subject.

41. Mr Johnston: We were rerouted.

42. Mr Wells: I know the feeling.

43. Do the assessment of dangerousness provisions apply only to violent offenders or do they also cover sex offenders?

44. Mr Haire: They apply to both.

45. Ms Anne O’Connell (Northern Ireland Office): They apply to violent and to sexual offenders.

46. Mr Wells: There is a person in my constituency who, everyone accepts, is a danger to the community. However, under the present legislation once he reaches the end of his sentence — and he is a model prisoner — there is no provision to extend his sentence on the basis that he is a danger to the community. Under the provisions of the draft Order could that person’s sentence be extended even though he is not a violent offender?

47. Mr Haire: Yes. If an individual received an indeterminate sentence, they would remain in prison until they proved that they were no longer a danger to the community. If they received an extended sentence, they could get out but would then have their licence extended for a period of up to eight years.

48. Mr Johnston: The question is about danger and risk; it is not about whether the offender was violent.

49. Mr Wells: The question of danger and risk would need to have been decided at the time of sentencing. It could not be decided half way through a standard sentence that a prisoner was a risk to the community and should therefore have their sentence changed to an indeterminate one.

50. Mr Haire: That is not the case in the standard form of imprisonment. If the case that you describe did not fall into the public-protection regime and that offender received a standard form of imprisonment, the risk assessment aspects of it should have been addressed.

51. The Chairperson: Do you want to follow that through?

52. Mr Wells: I do not want to stray onto dangerous ground.

53. The Chairperson: Do not cite individual examples.

54. Mr Wells: The witnesses may be aware of the case that I am referring to. The individual has admitted that he is a danger to society and that he has no control over his behaviour.

55. That cannot be retrospective, which I understand. However, if that person offended again, a decision about danger and risk would have to be made at the time of sentencing. Am I right that an offender could be kept for up to eight years?

56. Mr Johnston: That depends on the seriousness of the offence; if it was one of the most serious, the offender would be kept until it was judged safe to release them — an ICS — which could be for life. However, for a more moderate offence the ECS would apply; there would be custody and an extended period of licence and supervision in the community.

57. Mr Wells: Could that only happen if an offender had been indicted in a Crown Court?

58. Mr Johnston: Yes. However, it is worth outlining the arrangements for sex offenders in general; arrangements that are being strengthened by being put in the Order. First, there is a system called MASRAM, which deals with the multi-agency risk assessment and management of offenders. MASRAM is not just about sentenced prisoners; it can apply to those who are on remand, awaiting trial, or who have been otherwise assessed as presenting a risk. We have fairly advanced arrangements for agencies — such as the Probation Board of Northern Ireland and the PSNI — to work together, have case conferences and keep people monitored and under review. If that is being done outside licence conditions, there is a limit to what can be imposed. However, there are advanced arrangements to consider individual cases in detail.

59. Orders are also available for a sex offender who needs more management. Amanda Patterson will say something about the civil orders and the circumstances in which they are available.

60. Ms Amanda Patterson (Northern Ireland Office): Gareth mentioned the MASRAM arrangements, with which the Committee is au fait, and there are orders in the Sexual Offences Act 2003 that can be used to deal with offenders who are in the community. The most common is the sexual offences prevention Order, which applies in the case that was mentioned. These contain provisions for an offender’s behaviour — prohibitive arrangements that mean an offender should not for example be near a park or school at particular times or have unmonitored access to the Internet. Those can be used if an offender leaves prison without a probation order or a sex-offender licence and it has been proven that there is a risk of serious harm to the community.

61. Although that is the most common order, others — such as notification orders and foreign travel orders — can prevent offenders travelling to another country if there is evidence to suggest that they are involved in child-sex abuse; such people are known as travelling paedophiles.

62. Mr Johnston: Although the ICS and the ECS would have to be imposed at the time of sentencing, other arrangements can be used where sex offenders present a risk.

63. Mr Wells: The offender in this example is in jail for his third offence; the same restrictions and controls were put in place after the first two offences. The third offence was diabolical. In that situation, the only sensible alternative is a custodial sentence or a secure unit until the offender is no longer a threat to society.

64. Mr Johnston: I cannot comment on individual cases. Sentences are for judges and the courts to impose. I am happy to provide Mr Wells with more information on legal options other than the ICS and ECS.

65. Mr O’Dowd: Will an individual be charged with a new offence? Who decides that an offender will be sentenced under the new regulations?

66. Mr Johnston: The judge will decide, in line with the framework, on the appropriate sentence. The charge will be for the range of offences that are listed in the annex.

67. In certain circumstances a court must consider an indeterminate custodial sentence. It may decide that either an indeterminate or an extended custodial sentence is the best way of dealing with an issue. Ultimately, the judge takes the decision, but the legislation will trigger consideration of that for the courts.

68. Mr O’Dowd: This is a new power for judges. Will judges receive new training on this matter? On the one hand, there has been a concern that judges are detached from society because of their role and their work; on the other hand, I have concerns that the justice system could end up being run by the latest media chat show. We have had discussions in other Committees and in the House about the independence of the judiciary. How do we ensure independence in this matter? How do we ensure that the judiciary is properly equipped to come to the right conclusions?

69. Mr Johnston: The Judicial Studies Board acts under the direction of the judiciary, and its purpose is to train judges and share information. The judges run the board themselves. However, the NIO has signalled the Lord Chief Justice’s office that it would be happy to give the Judicial Studies Board whatever assistance it needs with its programme to prepare for the implementation of those new sentences.

70. Mr O’Dowd: Is the Lord Chief Justice willing to accept that offer?

71. Mr Johnston: I am waiting to hear from him.

72. Mr McFarland: I asked the Secretary of State about this matter, but it would be useful for this question to be recorded in Hansard too. You will be aware of the media pressure on the issue of 50% remission — it has reached a crescendo. Why is it not possible to end 50% remission retrospectively? Why will an offender who is already in jail when this legislation is introduced not be sent back to jail upon their release when 50% remission has been abolished?

73. As the issue becomes more public, part of the battle that the NIO will face will be explaining to the public that anyone — no matter what their crime was — who was sent to jail before the Order became law will not be subject to the ending of 50% remission. Prisoners will be subject to the provision only if they are convicted after the Order comes into force. Sometimes the public is quite slow to understand the reason. There will be political pressure if, in four years’ time when policing and justice powers are devolved, an horrendous mass murderer gets out of jail, even though everyone knows that he is not fit to be allowed out. Politicians and the policing and justice Minister will be under enormous pressure to explain why nothing is being done under the provisions in the Order. Can you set the scene for us, please?

74. Mr Johnston: I know that that has been a concern, and the NIO has tried to present the facts in media briefings to ensure that reports are as accurate as possible.

75. This matter really comes down to legal issues, particularly to the European Convention on Human Rights. Once someone has received a sentence from the court, their case has been cleared. For the Executive to intervene to try to impose a different sentence because it did not like the one that the court had imposed simply would not work from a legal perspective. The NIO has explored this matter in great detail with its own lawyers and elsewhere. There is no legal ability to change sentences that have already been handed down.

76. However, we can ensure that, in such circumstances, other arrangements are available.

77. When someone is released on licence and there is an opportunity to impose conditions on them, the Order will allow for a broader range of conditions to be imposed. We are introducing curfews and the electronic monitoring of those curfews so that they can be more effective. It is also important to emphasise the MASRAM arrangements, which we are extending to violent offenders as well as to sex offenders, and that will be in statute.

78. The sentencing provisions in the Order may not be available to someone who is being released having been in prison for sexual or violent offences. However, the multi-agency arrangement to assess the risk and to work together will come into play — that is a good example of agencies working across boundaries to manage risk. We can never completely manage risk, whether with the new or the present framework. However, we can try to minimise risk and to put arrangements in place to observe offenders very closely who may remain a risk.

79. Legally, we cannot make the sentences in the Order retrospective; however, we are improving the arrangements for monitoring and managing offenders who are released under the existing arrangements.

80. Mr McCartney: Does the judge have latitude or is fixing a sentence determined by the schedule?

81. Mr Haire: The schedules will determine the applicability of the public protection sentences. If a person is charged and convicted of an offence, the judge must go into the public-protection sentencing. The added caveat is that that person then has to “fail” the dangerousness test to get a public-protection sentence.

82. Mr McCartney: If the Attorney General feels that a sentence is too low, he can appeal it. However, I presume that no such arrangement exists in the provisions of the Order.

83. Mr Johnston: The arrangement that allows the Attorney to do that is already in place.

84. Mr Strain: That is the law in relation to what may be considered unduly lenient sentences. However, these provisions will not affect that.

85. Mr McCausland: I am looking at the schedule for serious offences. Would any offence that involves child pornography be automatically termed a serious offence?

86. Mr Haire: Yes, if that is the offence charged and it is on the schedule.

87. Mr McCausland: If it is a serious offence, will it automatically be taken as a life or indeterminate sentence or is that just an option?

88. Mr Haire: It is a public-protection sentence. The court would have to look at the indeterminate custodial sentence and use it. However, if it thought that the extended sentence was more appropriate, it could use that.

89. Mr McCausland: Would it be up to the court or the judge to decide which of the two sentences would apply?

90. Mr Haire: Yes.

91. Mr McCausland: I am not referring to any specific case, but if a male were guilty of exposing himself to children or trying to encourage children to engage in sexual activity, would that also be a serious offence and would a similar situation prevail?

92. Mr Johnston: That would depend on how the offence was charged and which of the offences that were on the list were charged in those circumstances.

93. Mr McCausland: Does exposure count as a serious offence?

94. Mr Haire: Exposure is on the schedule. A serious offence must carry a maximum penalty of 10 years or more. The schedule can confirm the maximum penalty for that offence, but our initial thought is that it would not attract the public-protection sentence.

95. Mr Johnston: Offences more serious than exposure — grooming or physical contact, for example — would come under a different range of offences.

96. Mr McCausland: The evidence seems to suggest that those who are guilty of such offences tend to reoffend.

97. Mr Johnston: The MASRAM arrangements are designed to address that. It is a problem, as the evidence shows. It is a question of the agencies identifying the people who are most at risk of reoffending and managing that risk as best they can.

98. Mr McFarland: Exposure is a specified sexual offence under section 66 of the Sexual Offences Act 2003. Voyeurism and exposure are listed on page 73 of the draft Order under part 2 of schedule 2 on specified sexual offences.

99. Mr Haire: Those are specified offences with sentences of less than 10 years. We are looking at serious offences.

100. Mr Johnston: Such an offence could attract an extended custodial sentence, but it would not be in the range of offences that would attract an indeterminate custodial sentence. However, it is still within the realm of the public-protection sentences.

101. The Chairperson: I am anxious to move on, because time is against us. I am sure that other questions will arise on that matter, but we can revisit it on another occasion.

102. Mr Haire: We have dealt with custodial sentences. I was about to talk about non-custodial sentences, but it might be convenient to deal with how the Order deals with MASRAM arrangements, because Amanda Patterson is here.

103. Ms Patterson: The Order puts the MASRAM arrangements on a statutory basis. That means that agencies will be required to work together and to share information to manage effectively the risk that serious sexual and violent offenders in the community present to the public. The aim is to enhance the protection of children and adults, particularly the vulnerable. The statutory provision will be on a similar basis to that for the multi-agency public protection arrangements in England and Wales.

104. One reason for the development of the policy was a recommendation by Criminal Justice Inspection Northern Ireland, which concluded that the current arrangements would be better if they were placed on a statutory footing and expanded to include violent offenders. Therefore, our policy is to provide a legislative authority for specific agencies — in discharging their individual statutory responsibilities, which is a very important point — and to have them work together to assess the risk posed by sexual and violent offenders and to put in place arrangements to manage the risk and target the resources that are available to the management of the most serious risks.

105. The legislation puts those arrangements on a statutory basis. It does not provide the agencies with any extra statutory power; that is not what MASRAM arrangements are about. They are about criminal justice agencies and others working together and discharging their own statutory responsibilities in a multi-agency way. They must come together to examine the risk posed by individuals and to manage the risk posed by the most serious offenders. The statutory provisions will permit the Secretary of State to issue guidance to the agencies on the discharge of their own responsibilities as regards how they would best and most effectively manage the risk posed by serious offenders.

106. That is the important part of the legislation. It talks about the management of risk — not about the management of offenders, which is a different and separate issue.

107. Mr Wells: Such a system already exists for sexual offenders. Does it actually work? How many times have we picked up the newspapers and read that someone is due to appear in court yet again, having committed another offence? It seems that each time that such a person offends, the severity of the offence increases. In the Strabane case the man who was involved was managed under a risk-management scheme, but look what happened. Is that management? Are the resources available to implement the proposals? At the minute, hard-pressed professionals are involved in many cases, trying to keep plates spinning in the air, but we still have more of the same.

108. Ms Patterson: It is not for me to defend how the arrangements work on that level. However, management of the particular individuals is up to the agencies that are involved. The person to whom you referred when you talked about the case in Strabane was under probation supervision — he was under a court order to be managed by the Probation Board. The draft Order would not change circumstances such as those; it and the current arrangements provide a forum in which the Probation Board, the police, the social services, the Prison Service and the Housing Executive can bring together their combined expertise to assess the risk that someone poses and to work out the best way to manage that risk. The system is not a magic wand; it is the best way of reducing the risk that such people pose.

109. Mr Johnston: Reoffending often attracts a great deal of publicity. However, there are many more situations in which the risk has been managed, but we can never eliminate risk completely. We are continually looking for ways to improve the arrangements. Yesterday, the Minister was discussing with his Southern counterpart cross-border cases and the potential to strengthen co-operation, especially in border areas.

110. Mr O’Dowd: Are our risk-management systems based on international best practice?

111. Ms Patterson: Absolutely. There is a fair amount of evidence that shows that agencies here are probably ahead of the game. Indeed, we have some of the best multi-agency risk-assessment and risk-management arrangements.

112. Mr O’Dowd: I am not sure whether this covers your field, but is treatment part of the risk-management strategy for predatory sex offenders?

113. Ms Patterson: It could be, although not necessarily. The agencies will apply a range of interventions when they can and when they are available. For example, if it is an available option, the agencies will intervene by ensuring that a sex offender receives treatment in the community.

114. Mr McFarland: I am sure that you are aware that the matter has been discussed a great deal on ‘The Stephen Nolan Show’. There is enormous public concern that we are not able, despite all the systems, to stop some people reoffending. For example, they have to report to the police station once a day, but I am sure that you have heard members of the public ask what they do in the remaining 23 hours of the day.

115. Are we missing an opportunity to address public fears? Is it correct that electronic tagging and curfews, which could be used in such cases, cannot be used on people leaving prison until those who are sentenced under the proposed new arrangements will be subject to the use of those devices?

116. Despite the best efforts of the current system to monitor such people, it is not happening. Can we introduce provisions that will allay public fears and will help the Probation Board and the police to monitor people who are a continuing threat and who, had they been imprisoned under the draft Order, would not present a problem because there would have been a mechanism to handle their case?

117. Are there measures that we can piggy-back on in the draft Order? Sometimes errors occur in new legislation, but there is a reluctance to interfere with it. Are we missing a trick by not introducing provisions — no matter how difficult it may be for the NIO and the draftsmen — that would at least partially allay people’s fears about offenders getting out of jail and running amok and the law being unable to do anything about it?

118. Ms Patterson: I think that curfews and electronic tagging will be applicable even if a person is sentenced before the Order is enacted.

119. Mr Johnston: Licence conditions could include curfews and electronic monitoring.

120. Mr McFarland: If an offender who was sentenced before the draft Order comes out of jail —

121. Mr Johnston: Who is not subject to licence —

122. Mr McFarland: Can they be tagged when they are out and still be considered a danger?

123. Ms Patterson: No. Not at the minute.

124. Mr Haire: At present, a prisoner released from prison is not tagged. The new powers can be applied to a prisoner who is released under article 26 of the Criminal Justice (Northern Ireland) Order 1996 — which is a sex offender licence — or under a custody probation order. That is because we are building on curfew powers that already exist.

125. Ms Patterson: That will be the case as soon as the new legislation is implemented.

126. Mr Johnston.

127. We need to provide a better explanation in the public forum of what is available and what has been done. In the spring, we will run a criminal justice week featuring contributions from the criminal justice agencies. We are seriously considering whether, as part of that, we could showcase the MASRAM arrangements and explain the existing arrangements a bit better in the media.

128. We have explained the arrangements for those who are released under existing sentences, although we can reconsider them during the consultation. We could get into legal difficulties on that matter, so I cannot make any promises.

129. Mr McFarland: Say, for the sake of argument, that the Order comes into effect in March and a well-known paedophile who has been in prison for many offences is released at the end of April, can he be tagged or made subject to curfew orders?

130. Mr Johnston: Yes — if he has been released under an Article 26 sex offender licence.

131. Mr McFarland: Therefore he can be tagged and made subject to a curfew when he is out on licence.

132. Mr Haire: Yes — once that period has been commenced.

133. With regards to the new legislation and non-custodial sentencing, there are three headings — two of which we have touched on. New powers on curfew and tagging are dealt with under one heading; while arrangements for parole commissioners are dealt with under the other, because those are included in the sentencing powers. An additional disposal is being made available to the courts for a supervised activity order, which will be an alternative to custody for fine default.

134. The new powers allow the increased use of curfews that already exist in law. Therefore they will allow the increased use of curfews as a condition of bail; as a conditional requirement attached to a non-custodial sentence, for example, probation; or as a condition of licence on release from custody, for example, an article 26 licence.

135. The new powers will allow an increased use of curfews, which will be restricted to between two and 12 hours in any one day, although the Secretary of State can adjust those hours if required. In parallel to the expansion of curfews, the draft Order creates electronic monitoring or tagging powers to allow the monitoring of curfews if the period of electronic monitoring is to be more than 14 days. That allows a greater use of tagging in preference to custodial sentences or remands in custody in appropriate circumstances. That, in simple terms, is what the curfew and tagging powers do.

136. The draft Order builds on the body that already exists — the Life Sentence Review Commissioners — who consider only life-sentence cases at the moment. However, they will be changed into a body that deals with the ICS, ECS and the recall of fixed-term prisoners. Their caseload will be expanded and they will have responsibilities beyond life-sentence prisoners. The same appointment, tenure and independent arrangements will apply.

137. Finally, in relation to non-custodial sentences and the supervised activity order, each year around 1,800 or 1,900 people go to prison for defaulting on a fine, and on any given day up to 30 people may be serving a very short sentence for defaulting on a fine. It is the only real disposal available to the court for those who default on fines. The proposals for the supervised activity order will introduce an alternative to that custodial default period. For example, instead of seven days in custody for default of a fine, the court could impose 40 hours of supervised activity. A person defaulting on a fine would report to the Probation Board for the supervised activity order to be implemented. The proposal is to remove custody for a fine default in as many cases as possible.

138. The Chairperson: As this will be an enhanced function for the parole commissioners, what resources will the Government make available to them?

139. Mr Johnston: We will be looking to enhance those resources. It will be a step-wise enhancement because, initially, there will only be a few cases. However, we have made some projections about the likely number.

140. The Chairperson: It will mean a considerable enhancement to the work of the parole commissioners.

141. Mr Johnston: It will. There are already quite a number of life sentence review commissioners because of the way that they work. We have plans to increase their resources and, if necessary, to recruit more people.

142. Mr McCausland: Is supervised activity the same as community service?

143. Mr Haire: In essence; although the activity may not be work-based; it could be training or education.

144. Mr Wells: Would that be a deterrent? Would people pay up if they heard that they were to be supervised doing flower-arranging classes or woodwork? The media would have a field day if persistent offenders were dealt with in that way. Is the supervised activity order only one option? Does the court still have the option of sending offenders to prison?

145. Mr Haire: The court still has that option. It has to consider the supervised activity order before it imposes custody for a fine default. That is for the court to decide. However, if a person breaches a supervised activity order, the penalty would be a heavier custodial period than in the first instance. There are incentives to ensure that a person complies with a supervised activity order.

146. Mr McCausland: Does the court determine the activity?

147. Mr Haire: The Probation Board would decide that.

148. Mr Johnston: The courts decide on the number of hours, which could be up to 100.

149. Mr McCausland: There is value in making community service relevant to what the fine was for. For example, if someone was being fined for plastering a wall with graffiti, they could be required to clean graffiti for a certain number of hours; if someone was fined for urinating in the street, they could be required to hose the streets.

150. Mr Johnston: That will be the responsibility of the Probation Board.

151. Mr McCausland: Who will guide the Probation Board?

152. Mr Haire: There are provisions for rules to be prepared by the Secretary of State regarding the operation and implementation of the supervised activity order.

153. Mr McFarland: In England, a substantial number of prison places is taken up by little old ladies who defaulted on fines. How many people are in prison in Northern Ireland for not paying fines?

154. Mr Johnston: People jailed for not paying fines do not take up a huge number of places as they tend to be in for short periods. There are on average 30 places taken up on a typical day, which it would be helpful to free up. However, in some circumstances, 100 hours’ community service involving an unattractive activity, compared to a few days in prison, could be an incentive to pay a fine.

155. Mr McCausland: Does the Secretary of State draw up rules on supervised community service that can be changed because they are not legislation?

156. Mr Strain: The rules will be included in subordinate legislation.

157. Mr Johnston: They will be relatively straightforward to change.

158. Mr McCartney: The Order will impose a new regime on the Prison Service regarding the housing of prisoners. Are there any plans regarding that? Recently, I visited Maghaberry Prison, which implements the gradual release of prisoners. How will the Order affect that? Was that part of the discussion?

159. Mr Johnston: We have discussed the arrangements with the Prison Service, the Probation Board and other agencies that will be involved to consider how they can best be implemented. We want to establish an implementation team soon, which will be the link with all the agencies, and which will ensure that when the button is pushed, they are ready to proceed.

160. Mr McCartney: Article 21 refers to the power to release prisoners on compassionate grounds. Does that power lie with the Secretary of State or the Prison Service?

161. Mr Haire: The Secretary of State will make that decision in consultation with the Prison Service.

162. Mr McFarland: Article 20 enables the Secretary of State to release a fixed-term prisoner on licence at any time during the last 135 days of custody. Why was that figure specified?

163. Mr Jake McClure (Northern Ireland Office): That is the figure that has been used in England and Wales

164. Mr McFarland: Do we know why?

165. Mr Johnston: We do not know.

166. The Chairperson: If you have any further information on that, would you get back to us?

167. Mr Johnston: I will make enquires and put something in writing.

168. The Chairperson: If there are no further questions on that section, we will move on to the road traffic provisions of the Order.

169. Mr Strain: Part 4 of the Order contains new powers to address three areas of road traffic law. It creates a new definition of careless driving. Careless driving provisions are a mixture of statute and common law. We have consolidated that into one definition that stipulates that the person who is affected by the careless driving has to have been inconvenienced.

170. We have created the new offence of causing death or grievous bodily injury by careless driving, which has a maximum penalty of five years in prison. We are also creating penalties for unlicensed, disqualified or uninsured drivers who cause death by driving.

171. We will also have tighter laws on drink-driving that will allow specimens to be taken, and will include regulations regarding alcohol ignition interlock programmes that would allow people to get back on the road subject to being breathalysed before they get into a car. Of particular interest is the provision in article 64 “Seizure of vehicles used in manner causing alarm, distress or annoyance” — mini-scooters being raced around streets, for example.

172. We will also introduce a power to regulate the use of devices — called defusors — that some motorists use to avoid speed detection. Defusors interrupt the radar signal from speed detection devices, and we want powers to deal with people who carry them.

173. The Chairperson: Article 64 will deal with people misusing vehicles on the public roads who might not necessarily have stolen those vehicles.

174. Mr Strain: Vehicles, whether lawfully or unlawfully held, that are causing alarm, distress or annoyance can be seized and disposed of.

175. The Chairperson: Can they be seized on the spot without a court order?

176. Mr Strain: Yes; and the police also have the right to go onto premises, other than private dwellings, in pursuit of offenders who may have headed down alleyways or into public parks.

177. Mr Wells: Quad bikes torture neighbourhoods. In housing estates in south Down children get them for Christmas. I do not know where they get the money. My kids will not be getting them, I can tell you. [Laughter.]

178. They roar up and down on Housing Executive and council property, sometimes on roads but mostly on football pitches and footpaths, and when anyone comes after them they scoot round to the back of their house. Can the police lift such vehicles if they are on council property?

179. Mr Strain: Yes. They can be lifted from any public area.

180. Mr Wells: Can they be pursued if they fly back onto their own property?

181. Mr Strain: Police cannot go into a private dwelling to seize them.

182. Mr Wells: Will they be safe if they scoot to the first private house?

183. Mr Strain: The police would make a report. Several issues are involved.

184. First, it is likely that the vehicle is being used unlawfully and probably does not comply with construction regulations. Such vehicles are supposed to have anti-roll bars, and they never do, which is why riders get killed.

185. Mr Wells: I have never seen an anti-roll bar on a quad bike in my life.

186. Mr Strain: It is illegal to have such a vehicle on a highway without an anti-roll bar. Farmers use them in fields, and that is OK because they own the fields.

187. The police would issue a summons in relation to the activity that they had observed, and then the magistrate would issue a summons for that person to appear in court to be dealt with.

188. Mr Wells: That could be an eight-year-old. The offenders are mostly children and teenagers, so how would the law apply to them?

189. Mr Strain: A person under eight is below the age of criminal responsibility, and the law cannot deal with them. However, under the Serious Organised Crime and Police Act 2005, parenting orders can be issued so that parents can be brought to court and be ordered to pay fines. There is also the Children (Northern Ireland) Order 1995, which allows a child to be brought before a court, and the parents pay the fine.

190. Mr Wells: It is sometimes difficult to find the parents.

191. Mr Strain: Those are enforcement issues.

192. Mr Wells: The police tell me that they can do very little at the moment.

193. Mr Strain: That is what the provisions are about.

194. Mr Wells: If offenders are under a certain age, the police still cannot do anything.

195. Mr Strain: There is an issue about prosecuting the child, but the police seize the vehicle.

196. Mr Wells: However, even though a vehicle may not be seized on private property a prosecution can still be made.

197. Mr Strain: Yes.

198. Mr McFarland: I am slightly confused by that. If a lad who has no licence or insurance and who is possibly disqualified hurtles up a road and wipes out a family, under article 54, the maximum sentence that he can receive is two years. Is that right?

199. Mr Strain: Article 54 deals with causing death by careless driving.

200. Mr McFarland: Article 54 deals with: “Causing death or grievous bodily injury by driving: unlicensed, disqualified or uninsured drivers.”

201. Mr Strain: Yes, but that comes under careless driving.

202. The Chairperson: One must draw the distinction between careless and dangerous driving. Dangerous driving is a more serious offence.

203. Mr McFarland: Article 53 deals with: “causing death or grievous bodily injury by careless or inconsiderate driving.”

204. The maximum fine for that is five years. If a driver ends up in court for that offence, can he or she be given an additional two-year sentence for driving without a licence?

205. Mr Strain: Under article 54 there does not have to be any element of careless driving. If someone is driving perfectly properly and an innocent pedestrian walks out in front of the car, the accident is the pedestrian’s fault, not the driver’s. However, the fact that the driver is uninsured, unlicensed or disqualified means a possible two-year jail term. If the driver is licensed, insured and driving properly, he or she will not face any penalty.

206. Mr McFarland: However, if an accident is caused by careless driving, there is a maximum five-year sentence.

207. Mr Johnston: Yes; and there is also an offence of dangerous driving for which the maximum penalty is a 10-year sentence.

208. Mr McFarland: As a layman, I would like to know where the dividing line is between careless and dangerous driving. Is it to do with intent or what the driver is doing at the time of an accident?

209. Mr Strain: It is to with a reasonable person’s observation of your driving. Careless or inconsiderate driving causes inconvenience to others: if I hurtle down the road at a speed that is not exceeding the speed limit but it is a foggy day and someone observing me would see that I am going too fast and an accident is caused thereby, that is my careless driving. Dangerous driving would be me bombing down the M1 at 160 mph without a care.

210. Mr McFarland: Is driving that is impaired by drink or drugs taken into consideration?

211. Mr Strain: Driving under the influence is different.

212. Mr McFarland: Can someone be prosecuted for dangerous driving and driving under the influence of drink or drugs?

213. Mr Strain: Yes, for any heady mix of offences.

214. Mr McCausland: Do the police feel that the new laws on vehicles causing annoyance are adequate?

215. Mr Johnston: They have been very supportive.

216. Mr McCausland: When I speak to the police they are always frustrated at being unable to deal with quad bikes. From what you are saying, I assume that they have made it clear that the future provision will be adequate to address the issue.

217. Mr Johnston: They have welcomed our proposals.

218. The Chairperson: The police will appear before the Committee when we can ask them ourselves, but, as far as you are concerned, they are content.

219. Mr Johnston: Yes.

220. The Chairperson: Article 59 is “Alcohol ignition interlocks” What does that mean?

221. Mr Johnston: It is a system whereby a driver cannot switch the ignition on without blowing into a breathalyser. If the driver is over the limit, the car will not start. The ignition can be turned on only by a driver who is below the limit. Work still has to be done on how to implement that, but the Order gives the NIO the enabling power.

222. The Chairperson: You look puzzled, Mr McFarland.

223. Mr McFarland: A driver could get their young son to blow heartily into the breathalyser. Does the system monitor the driver in the seat? Can it prevent a person other than the driver taking the breathalyser test?

224. Mr Johnston: I confess that I am not completely au fait with the technology; I do not think that it is a complete answer. If one drives, one is subject to the law on driving under the influence of alcohol and drugs. It causes people to stop and think; it challenges them to make the right decision.

225. The Chairperson: I am mindful of the time. Mr McCausland, do you have a problem with time?

226. Mr McCausland: I must leave at 3.45 pm or 3.50 pm.

227. The Chairperson: You can stay for 10 minutes yet, however.

228. Members are content to leave that section and move on to the miscellaneous aspects of the order: PACE, knife law, youth justice and other matters. Will Mr Haire take the Committee through those aspects?

229. Mr Haire: If you agree, I will pick a few important issues at the outset and we will see how the time goes.

230. The Chairperson: That is fine. If we cannot complete this, would you be prepared to come back?

231. Mr Haire: Yes. Given the time constraints, the two aspects worth picking out are the provisions on the purchase and consumption of alcohol powers and the changes in the law on knives.

232. Articles 66 to 71 cover alcohol. There are two main provisions. The first is a test purchase of alcohol power that will enable the police to allow a person under 18 years of age to go into an off-licence — or any licensed premises that has an off-licence, including a supermarket or a bar that has a off-licence — to purchase alcohol for test purposes. An off-licence holder who sells alcohol to a person under 18 is guilty of an offence. The new powers allow the police to go through the test purchase arrangements. They do not have that power at the moment, although it exists in England and Wales.

233. The second set of powers deals with the creation of designated public places in which the possession of alcohol can be policed with a small “p”. The police will have power to require people not to consume intoxicating liquor and they can seize opened or closed containers. Councils will continue to have the power to designate by order areas where public drinking may not take place. However, they will have to do so in consultation with the police and the areas will have to be places associated with disorder and alcohol-related nuisance.

234. Under the new proposals it will not be an offence to consume alcohol in a designated area. That is an offence at the moment. They will make it legitimate to picnic and have a glass of wine in such an area. Drinking alcohol is not the issue; rather it is the antisocial aspect of it, including failure to stop drinking when asked to. The police will have discretion under the proposals to allow drinking that does not cause nuisance. Failure to surrender alcohol can attract a fixed-penalty notice or a prosecution. There are other details, but the main provisions give the police a new power in conjunction with councils to designate areas and control the consumption of alcohol.

235. The Chairperson: As public representatives, all members are aware of the nuisance caused by antisocial drinking, particularly by young people. Is it an offence for a young person to be in possession of alcohol or to consume it in a public place?

236. Mr Strain: Yes.

237. The Chairperson: The problem in Belfast and elsewhere is that not only 18-year-olds but older people engage in antisocial activity and nuisance drinking in public. I understand the designation of areas by local councils, but can we not simply ban all drinking in public places, without designation? Could that be drafted and implemented?

238. Mr Haire: It could be drafted, but it is for Ministers to take a view on such matters. Consumption of alcohol in some public places does not cause problems. Therefore responsible people would be punished as a result of those who have been irresponsible.

239. Mr Johnston: No one is objecting to people sitting outside a café bar having a glass of wine in the summer. The proposals will provide powers for the police to go into problem areas and impose fixed penalties, for example. Their intention is to provide a short, sharp answer to the problem.

240. The Chairperson: People who drink outside bars or restaurants are on licensed premises; they are protected by the licence and can lawfully consume alcohol.

241. Mr McCausland: The presumption should be in favour of prohibiting drinking in all public places. However, if it is the will of society, there could be exemptions in certain places, such as outside wine bars. The presumption should be in favour of no public drinking.

242. A street in my constituency was designated, and a small entry off it had several houses, so it became a designated area. Now another area has been found, and it must now go through the designation process. It is never-ending; Belfast City Council continually goes through the designation process, but new places are constantly being found. Just as water will always find a gap through which to flow, drinkers will find some place that has not been designated.

243. The presumption the other way would be much simpler, because there are only a limited number of licensed premises outside which an appropriate designation could be made. For example, behind the City Hall, one hotel has a cordoned-off canopied area where people sit and drink. A positive decision could be made to designate that as an area where people are allowed to drink rather than an area where they are not allowed to drink. One could distinguish between situations where people sit at tables in a cordoned-off area and situations elsewhere in the city where, for example, 20 large gentlemen stand outside a public house drinking alcohol. That can be quite intimidating for passers-by. Would that not make the law much simpler?

244. If exemptions are made, letting people sit outside with their glass of wine would be open to abuse. One person sitting in the park having a glass of wine can behave very differently to someone else doing the same thing in a park or street outside their home.

245. Mr Wells: You are creating the impression that in inner-city Belfast or the harder areas of Castlewellan or Newcastle there is a huge demand for eating cucumber sandwiches and drinking a glass of château 45 on a summer’s evening. That is nonsense. Most people will do what Nelson said — they will drink outside a restaurant. Although Down District Council has spent a fortune on designating drinking areas, the problem merely moves down the street from those places. People find somewhere to drink that is not a designated drinking area, but the signs have been vandalised and they use the argument that they did not know that the area was not designated.

246. Some drinkers in Kilkeel, for example, are older people, and they can drink quietly on account of their age. However, they still drink all day in the middle of the town square. They are an embarrassment to the town, and they leave litter and cause other problems. Although they are well behaved, they are not making proper use of the town’s main square, so much so that they discourage anyone else from going near it. Opting in is the answer, and it would save a fortune. Is there any legal reason that we could not go down that road?

247. Mr Johnston: I am not sure whether there is a legal reason for not taking that option. For practical reasons, a great many pubs and restaurants, for example, might apply to have designated drinking areas.

248. Mr McCausland: Can that not be dealt with under the terms of their licence?

249. Mr Johnston: If the Committee wanted to raise it, we would certainly examine it. The intention behind the provisions was to give the police the discretion to distinguish between a picnic, which was never going to present much of a problem, and the fellows who are knocking it into them all day, every day, and who may need to be challenged and moved on or have their drink confiscated. Given that the provisions do not ban drinking outright, it may be possible to designate wider areas. That would get over some of the difficulties that Mr Wells discussed.

250. Mr McCausland: Designating an area outside a pub or restaurant would address the problem of the local authority having to cover all the expense and the ratepayer having to pay for putting up signs and maintaining them when they have been defaced. It would also put the onus back on bar owners — who make quite a bit of money from the sale of alcohol — to make the extra effort and apply to have a designated area outside their bar.

251. Mr Johnston: That is something that we can consider and discuss further with the police.

252. The Chairperson: I do not think that there are any more questions. There are some issues outstanding, but time has beaten us. I will consult my Committee colleagues, and, if need be and if it is satisfactory to you, we will ask you to come back to deal with specific issues.

253. Thank you very much for coming; the meeting has been very helpful.

254. Mr Johnston: I thank the Committee for its time this afternoon.

255. The Chairperson: We will be taking oral and written evidence from other organisations between now and 9 January 2008. In the light of any presentations, we may ask you to come back to address certain issues that might arise.

256. Mr Johnston: We would be happy to do so.

257. The Chairperson: Our meetings are in public, so if you want to send anybody to monitor what we are talking about, you are more than welcome to do so.

258. Mr Johnston: I welcome that opportunity; we will keep in touch with the Committee Clerk about that.

259. The Chairperson: Of course. Thank you again.

5 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:

260. 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.

261. 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.

262. 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.

263. 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.

264. 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.

265. 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.

266. 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.

267. 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.

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

269. 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.

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

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

272. 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.

273. 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.”

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

275. Ms Ní Chuilín: Therefore, they are the options.

276. 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?

277. 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.”

278. 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.

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

280. Miss C Doherty: Yes, it does.

281. 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?

282. 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.

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

284. Miss C Doherty: It is a good example.

285. 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?

286. 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?

287. Mr McCartney: The essential difference is the maximum sentence.

288. 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.

289. 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.

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

291. 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.

292. Mr McFarland: I am still confused about the matter.

293. 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.

294. 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?

295. Mr McCartney: No.

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

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

298. 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.

299. 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.

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

301. 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.

302. 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.”

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

304. 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.”

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

306. Mr McFarland: What page are we on?

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

308. 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.

309. 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.

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

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

312. 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”).”

313. 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.

314. 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.

315. 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.

316. 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”.

317. 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 —

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

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

320. 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.

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

322. 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.

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

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

325. 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.

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

327. 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.

328. The Chairperson: We will try to clarify that.

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

330. The Chairperson: But it is finite.

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

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

333. The Chairperson: Alan, you have confused Carál.

334. 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.

335. 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.

336. 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.

337. 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.

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

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

340. 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.

341. 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 —

342. Ms Ní Chuilín: would you give him an ECS?

343. 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.

344. The Chairperson: We will attempt to clarify that.

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

346. 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.

347. 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.

348. 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.

349. 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.

350. 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.

351. 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.

352. 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.

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

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

355. 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.

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

357. 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.

358. 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 —

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

360. 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.

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

362. 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.

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

364. 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.

365. 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.

366. 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.

367. Ms Ní Chuilín: I think that it could.

368. 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.

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

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

371. Miss C Doherty: Yes; but only automatic remission.

372. 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?

373. Miss C Doherty: It is dependent on the offence.

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

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

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

377. We will move on.

378. 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.

379. 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.”

380. 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.

381. 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.

382. 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.

383. Moving on to parole commissioners —

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

385. 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.

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

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

388. 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.

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

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

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

392. 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.

393. The Chairperson: I take the point.

394. Miss Doherty, please continue.

395. 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.

396. 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.

397. 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.

398. 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.

399. 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.

400. 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.

401. 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.

402. 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.

403. 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.

404. 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.

405. 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.

406. 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?

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

408. 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.

409. 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?

410. 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.

411. 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.

412. 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.

413. 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.

414. 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.

415. 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.

416. 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.

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

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

419. 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.

420. 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.

421. 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.

422. 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.

423. 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.

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

425. 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?

426. The Chairperson: That is an interesting question.

427. 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?

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

429. 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.”

430. Does that clear up the queries?

431. 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.

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

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

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

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

436. The Chairperson:

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

437. Raymond is referring to a parole board.

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

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

440. The Chairperson: The NIO explanatory document states:

“Offenders serving standard determinate sentences will be released on licence at a point determined by the court.”

441. 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.

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

443. Miss C Doherty:

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

444. Mr McFarland: No, there is another bit.

445. Miss C Doherty:

“On release, offenders sentenced to custody will be placed under supervision.”

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

447. 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.

448. 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.

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

450. Miss C Doherty: That is my understanding of it.

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

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

453. The Chairperson: Yes, I do.

454. 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.

455. 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.

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

457. The Chairperson: I am not sure about that.

458. Mr McFarland: Will you clarify that?

459. 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.”

460. 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.

461. 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.

462. 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.

463. 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.

464. 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.

465. 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.

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

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

468. 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 —

469. 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.

470. The Chairperson: The draft Order doubles all the sentences.

471. 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.

472. 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.

473. 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.

474. 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.

475. 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.

476. 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.

477. 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.

478. 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.

479. 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.

480. 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.

481. 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.

482. 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.

483. 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.

484. 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.

485. 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.

486. 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.

487. 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.

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

489. 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?

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

491. 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.

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

493. 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.

494. Mrs 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.

495. 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.

496. Mrs 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.

497. 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.

498. 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?

499. Mrs 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.

500. 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?

501. Mrs 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.

502. 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?

503. Mr 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.

504. 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?

505. Mr McAlorum: Yes.

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

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

508. Mrs 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.

509. 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?

510. Mr McAlorum: That is correct.

511. 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?

512. 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.

513. Mrs 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.

514. 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.

515. 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.

516. Mr Wells: Was it offered?

517. 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?

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

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

520. 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.

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

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

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

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

525. 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.

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

527. The Chairperson: You are talking about the problem areas?

528. Mrs 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.

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

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

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

532. 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?

533. Mrs 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.

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

535. 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.

536. 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.]

537. Mr Wells: At 2.00 am in Kilkeel Square.

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

539. Mrs 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.]

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

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

542. Mrs 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.

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

544. 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.

545. Mrs 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.

546. 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.

547. 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.

548. 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?

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

550. 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?

551. Mrs MacHugh: Yes. However, that power has to be exercised by the Chief Constable or a senior officer. It needs to be used in certain situations, such as when public disorder becomes uncontrollable.

552. 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.

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

554. Mrs MacHugh: Yes. There is no provision for the police to shut down premises in advance of problems. However, there is provision to shut down premises 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.

555. 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.

556. Mrs 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.

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

558. 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.

559. Mrs 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.

560. 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.

561. 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.

562. 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.

563. 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.

564. Mrs 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.

565. 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?

566. Mrs 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.

567. 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.

568. The Chairperson: That particular statistic is very interesting.

569. Mrs 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.

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

571. 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.

572. 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?

573. 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.

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

575. The Chairperson: It is an interesting idea.

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

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

578. Mrs 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.

579. The Chairperson: It could fall within both.

580. Mrs MacHugh: It could.

581. 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?

582. Mr Wells: She could put it in her handbag.

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

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

585. Mr McCartney: There are voluntary schemes.

586. The Chairperson: There are.

587. Mrs 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.

588. 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.

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

590. Mrs MacHugh: No. If the Committee wants us to return after its deliberations, we would be happy to do so.

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

12 December 2007

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

Witnesses:

592. The Chairperson (Mr A Maginness): I welcome representatives from the Probation Board for Northern Ireland (PBNI), including its chairman, Mr Ronnie Spence; Mr Brian McCaughey, the chief probation officer; Ms Cheryl Lamont, the deputy chief probation officer; and Ms Louise Cooper, who is head of information and research. I also welcome the supporting cast of Mr Graham Kelly, the assistant chief officer of policy and planning division; and Ms Rosemary Bailie, the area manager of policy and planning division. You are all very welcome to the Committee. I thank Mr Spence for his written submission, which the Committee has had an opportunity to read it. I invite Mr Spence to introduce his team.

593. Mr Ronnie Spence (Probation Board for Northern Ireland): I thank the Committee for the invitation to give evidence on the draft Criminal Justice (Northern Ireland) Order 2007. I am the chairman of the Probation Board and I am joined today by several of our senior staff, including the chief probation officer, Brian McCaughey. I shall say a few words of introduction and then invite Brian to add a few points from his professional point of view.

594. This is the centenary year of probation in these islands, as it was established in 1907. The Probation Board for Northern Ireland, as a separate public body, has been in existence for 25 years. It is a public body, which, at present, is under direct rule and is appointed by the Secretary of State. It has 350 staff and spends around £16 million a year — mainly on staffing — and has premises across Northern Ireland.

595. The Probation Board deals with a significant number of the most difficult and challenging people in our community. They range from the extremely dangerous to those who are, sadly, inadequate and damaged. They include many people who have already caused considerable harm to others and some who are capable of doing further serious harm if not properly managed.

596. The Probation Board produces around 6,000 reports a year to the courts to assist judges and magistrates in setting appropriate sentences. It manages nearly 4,000 people in the community, which is close to three times the number of people who are in prison. The proposed legislation will increase those under our supervision by around 50%.

597. We are consulting about PBNI’s next corporate plan to cover the three years beginning 2008-09.

598. In preparation for that planning process, in the past year we have held a series of blue-sky seminars, under Chatham House rules, in an attempt to take a fresh look at the levels and causes of crime in Northern Ireland, to examine the effectiveness — or otherwise — of the existing responses to crime, and to see what we could learn from what had worked well in other jurisdictions. The Probation Board is in broad agreement with the proposed legislation, and we welcome its giving the board a central role in the future management of offenders in Northern Ireland.

599. The Probation Board’s draft corporate plan for 2008-2011, on which we are consulting, has two broad central themes. The first is the need for more joined-up thinking and action across Government in dealing with offenders, as they often have serious mental-health or substance-abuse problems. Offenders tend to have low levels of educational achievement, poor skill levels, and so forth. Therefore, we support the decision announced earlier in the year by the Northern Ireland Office to develop a Northern Ireland offender-management strategy. There must be more joined-up thinking and action throughout Government, both on matters that remain under direct rule and on those for which responsibility has been devolved.

600. The second theme of the plan is the need to develop, as quickly as resources allow, end-to-end offender management, which means that one professional probation officer manages an offender throughout the probationary period. The same probation officer should take care of the initial pre-sentence report, ensure that the offender signs up to the appropriate offender-behaviour courses while in prison, and manage the offender during the probation period and after release from prison.

601. As set out in many of our documents, the aim of PBNI is to help reduce crime and the harm that it does.

602. We have no illusions about the challenges that we face in trying to limit reoffending. We know — and the evidence exists to prove it — that probation can work, and can help many offenders to become more positive members of society. We are equally aware that some offenders are so dangerous that imprisoning them is the only safe way to protect society.

603. To sum up, we welcome the legislation and the proposed increase of the role of probation. The new roles and responsibilities will help to reduce crime and the harm that it does.

604. Mr Brian McCaughey (Probation Board for Northern Ireland): Thank you for the invitation to appear before the Committee. We are delighted to be here.

605. The Probation Board for Northern Ireland and other criminal justice organisations have worked closely with the Northern Ireland Office on policy development and on the development of instructions to counsel in the draft legislation. I shamelessly say that the staff who are with me today have worked tirelessly to get the legislation right. It is important that we have the opportunity today to outline our understanding of the proposed legislation, the opportunities that we believe it affords to Northern Ireland, and, above all, to answer the Committee’s questions.

606. It is important for Probation Board staff to take this opportunity, for which we thank the Committee, to assist, advise and work with the Assembly on its aims and on the Programme for Government. As our chairman said, the Probation Board welcomes the broad thrust of the draft legislation. Specifically, we welcome: the emphasis on increasing public protection; the introduction of new sentences for dangerous and violent sexual offences for which release from custody is dependent on verified reduction in risk; the supervision of all offenders on licence after release to address offending behaviour and reduce the likelihood of reconviction; the reserving of prison places for those who merit them; the provision of alternatives to custody for those who default on fines, and the provision of additional powers, such as curfews and electronic monitoring, to strengthen the management of offenders in the community.

607. As our chairman outlined, the Probation Board has evidenced significant achievement and success in offender management over the past 25 years. Although not well publicised, reconviction rates in Northern Ireland are lower than elsewhere throughout these islands. Above all, the Probation Board has a reputation and a track record as a non-departmental public body (NDPB) that works at grass-root level in all communities in the statutory and voluntary and community sectors to reduce crime and the harm that it does.

608. The Probation Board already contributes significantly to the criminal justice system in Northern Ireland. As the Committee has heard, the introduction of the Order will increase our workload by up to 50% over the next number of years.

609. My experience is that working to achieve public protection requires accurate assessment, clear focused offender-management plans and, more often than not, a multi-agency and multi-disciplinary approach. No one organisation has all the solutions. Therefore, a well-resourced probation service is essential to deliver on the legislation.

610. The Probation Board is aware that the legislation will require it to evidence new approaches to partnership and innovative and creative measures and initiatives to safely manage sexual and violent offenders. The legislation will expect the board to evidence itself as an organisation that can work flexibly and demonstrate responsiveness to Government, courts and communities. The board believes that it possesses the knowledge, skills and experience to meet the challenges of the legislation and to demonstrate itself as a leader in offender management.

611. I extend an invitation to any MLA to visit the Probation Board to observe our practice. Chairman, I thank you again for your invitation. We are happy to take questions.

612. The Chairperson: Thank you for your submission and for your written comments. A potential result of the Order would be the need for greater involvement of the Probation Board in offender management. There will be a step change in its involvement, which, inevitably, will mean that greater resources will be given to the Probation Board. Do you have any specific comments to make on that? I take it that you generally agree with what I have said.

613. Mr McCaughey: Graham Kelly will be able to provide the exact details of the costings. The Probation Board has been involved in all of the discussions and debates about costings. I said that the delivery of the new legislation will require a well-resourced probation service. That requires that it be resourced on its current basis, on which the board intends to build.

614. Therefore, I need to review the current funding and examine what is required to deliver on the new legislation. The board is thoroughly involved in the preparation of pre-sentence reports at the court stage, and it follows prisoners into prison. During the prison sentence, we intend to have a much more involved role to ensure that the issues that are identified at the assessment stage are delivered on during the prisoner’s period of imprisonment. Otherwise, under the legislation, the prisoners would not be released because they would not have had the opportunity to have evidenced a reduction in their risk levels, in respect of public protection. That is based on experience from England and Wales, where court cases have resulted when offenders have not been in a position to attend behaviour-change or educational programmes during their period of imprisonment.

615. The board sees itself assuming an offender-management role to ensure that those programmes are delivered in prison and that the prison regime operates to meet the delivery of those programmes. With continuous assessment, we will follow the prisoner out of the prison gates and monitor them with our colleagues in other statutory organisations, voluntary organisations and, I must add, with the community.

616. Mr Spence: We have had lengthy dialogue with the Northern Ireland Office about the resources that we need to carry out our existing responsibilities and the resources that need to be built up over the next few years to deal with the new legislation. We await the final outcome of those deliberations. No public body in Northern Ireland, when asked, would say that it had enough resources, but we are confident that we are engaged in sensible, well-based dialogue with the Northern Ireland Office about what we need.

617. People want to work for the Probation Board. A few years ago, when posts were advertised, we tended not to get many applicants. However, the last time that we advertised, a few months ago, we had a very healthy response. That is partly because the organisation has a good professional reputation. There are people with the necessary skills and experience who can help to tackle the increased roles that our staff will have.

618. Mr Weir: I appreciate that you are in discussions with the NIO, but what is the resource implication of the legislation, particularly from an operations point of view? Do you have a ball-park figure?

619. Mr Graham Kelly (Probation Board for Northern Ireland): We have based our estimates on prison receptions over 2003-05 according to Prison Service and Northern Ireland Office figures. The ball-park figure for the three years up to 2011 is £10·7 million.

620. Mr Weir: You said that your officials worked hard to get the legislation right and that the Probation Board broadly welcomed it. However, “broadly welcomed” sets alarm bells ringing. Is your support qualified? Is the detail of the legislation right or is there room for change?

621. Mr McCaughey: The legislation is correct in that it reserves imprisonment for the most dangerous and violent and for those who are a threat to the public; prison should be reserved primarily for such people. It also bolsters supervision in the community by providing curfews and electronic monitoring, and that will be of value to the Probation Board in its efforts to challenge offenders and supervise them safely in the community with statutory, voluntary and community partners.

622. I have no reservations about the legislation, although there are little areas that I would like tidied up. For instance, the legislation on article 26 licences — which deals with convicted sex offenders and which will continue for some time to come — is not retrospective; therefore I have a question about the applicability of curfews and electronic monitoring. However, I will comment on that in our response to the consultation.

623. The public in Northern Ireland expects a prison sentence to be served; it does not expect automatic 50% remission. I am wary when I see the word “discretion” and the title of some sentences. The word “discretion” should be avoided if we are to instil confidence through this legislation.

624. Mr McCartney: You say that your workload will increase by 50%. Will that be in the pre-sentencing, imprisonment or post-release phase?

625. Mr McCaughey: It will be at the post-release phase because we supervise 60% of the prison population, and under the new legislation everyone will be under supervision.

626. Mr McCartney: It is predicted that there will be an increase in the prison population and that there will be different categories of prison. Have you discussed with the Prison Service the sort of regime there should be, how it should be managed and whether there is enough staff to carry it out?

627. Mr McCaughey: You say that it is assumed that there will be an increase in the number of prisoners. There has been much discussion between Probation Board representatives and others on whether that would be the case, given the balancing out of supervision in the community. Moreover, some people who go to prison under the present system would not do so in future; they would be managed more safely under the new measures.

628. We are having full discussions with the Prison Service about the regimes that will be required to deliver the behaviour-change programmes, which will be central to the operation of any prison. If such programmes are not delivered for those who are serving public-protection sentences, the prisoners will not be released early by the commissioners because there will not be the evidence that there has been a reduction in risk.

629. Mr Wells: You suggested that your workload would increase by 50%. Are you confident that the necessary resources will be made available to cope with the extra workload? Could such a rapid expansion in the workload of the Probation Board lead to difficulties in training, recruiting and getting people up to speed with the new legislation?

630. Some high-profile cases in Northern Ireland and across the water have caused problems. Will the extra workload not put tremendous strain on the board over the next few years? Can the board deliver in those circumstances?

631. Mr Spence: We recognise that increasing the size of a professional organisation quickly risks incurring such pressures and dangers.

632. Ms Cheryl Lamont (Probation Board for Northern Ireland): Mr Wells referred to some of the serious cases that have been dealt with. Plans are already afoot between the board and the Police Service of Northern Ireland to form a co-located public-protection team that will be responsible for supervising the small number of the highest-risk offenders when they are in the community.

633. Mr McCaughey: The Probation Board cannot eliminate risk and neither can the legislation. With the assistance of psychologists, psychiatrists and other experts, we will assess people as thoroughly and comprehensively as possible; we will provide them with relevant programmes that have been identified in the assessment that is presented in court.

634. It will be important to ensure that the programmes are delivered so that offenders can be continually assessed, which will enable us to establish whether the risk has been reduced. Offenders will be thoroughly supervised through a multi-agency approach in the community, and the Probation Board will take swift action to return them to prison if they do not adhere to the requirements of their order or licence.

635. The Probation Board has a big responsibility: we supervise 4,000 offenders in the community, compared to the 1,500 who are in prison. The profiles of those groups are exactly the same. We supervise the vast majority of offenders in Northern Ireland, many of whom have addictions, mental-health problems, relationship problems and alcohol problems. We manage them in the midst of all the factors that contributed to their offending in the first place.

636. That is the challenge for Probation Board staff, and we are proud of our success to date. We are up for the challenge, Mr Wells, and we will ensure that training, recruitment, knowledge and skills are available to our organisation. However, we will not make false promises by saying that we will deliver what we cannot.

637. Mr Wells: You are performing an unenviable and extremely difficult task; no one would want to be in your shoes in having to carry it out. Can the Probation Board for Northern Ireland increase its staff so quickly without compromising its service in other areas?

638. Mr McCaughey: The Probation Board for Northern Ireland does its difficult task on behalf of the Government and communities of Northern Ireland. The offenders that the Probation Board for Northern Ireland works with reflect society in Northern Ireland; we provide our service to help to make Northern Ireland safer.

639. People’s interest and enthusiasm in working for the Probation Board is gratifying; they recognise the valuable contribution that we make to public protection, despite the difficulties. I hope that in our continued interactions, Members begin to understand fully our vital role in public protection in Northern Ireland.

640. Mr Spence: Mr Wells raised a fundamental point. The Probation Board for Northern Ireland has encouraged an open and positive culture in the organisation; we have done more to develop staff and to improve communications, and that is producing results. However, increasing staff numbers by between 20% and 50% over a short time will place a strain on the organisation. The most important thing is that we recognise that and build steps into the process to deal with it.

641. Mr McCaughey: We have studied the legislation and considered when numbers will increase so that we can phase our recruitment to meet the anticipated demand.

642. Ms Ní Chuilín: Reference was made to the voluntary and community sector’s input into the supervision of offenders to reduce their likelihood of reoffending. Would you expand on that? It sounds almost as if it were added as an afterthought. I am keen to know how it would work in practice.

643. Mr McCaughey: As an employee of the Probation Board since 1982 and as the present Chief Probation Officer, I have emphasised the delivery of probation services in, with and through the community. The Probation Board for Northern Ireland allocates £1·2 million per annum to the voluntary and community sector to help us to manage offenders in all communities. The Probation Board has had a presence in every community in Northern Ireland since its inception 25 years ago. We grant-aid and commission small groups and voluntary organisations to help us to manage offenders in the community.

644. There is a lack of understanding about the criminal justice system in our communities, so we must engage them in managing offenders. I see a world with community and voluntary organisations prepared to help me to complement the work of my staff in the supervision of offenders in the community, particularly at times of risk. I envisage a partnership approach in which all voluntary, statutory and community bodies, subject to their remit, work with me to help to make our communities safer.

645. Ms Ní Chuilín: I appreciate that. I know that the Probation Board has delivered, managed and provided resources for various programmes. My concern is that young people in interface areas who are on probation may get involved in rioting and violent activity. More often than not, there is a perception that the community is on its own in keeping children and young people, including those on probation, away from such activity. There is not much sign of a joined-up approach; it may exist on paper from nine to five, but after 5.00 pm there is no sign of joined-up anything.

646. The legislation may not change things significantly, but it should encourage a joined-up approach between community, voluntary and probation sectors, the PSNI, social services, the Probation Board and other statutory bodies.

647. Can I have your thoughts on that — if not now at some other time? It is a perennial problem; we discuss it after every summer. At the start of the following summer, we wring our hands and look for solutions. Now that the Assembly has emerged from suspension and Members are accountable, a difference must be seen to be made.

648. Mr McCaughey: I am more than happy to continue this conversation to explore solutions on another occasion.

649. I must clarify one or two points, however, as there are misconceptions about the role of the Probation Board. Our legislative remit changed some years ago: we were asked to secure the rehabilitation of offenders and contribute to public protection. That, enshrined in legislation, moved us away from preventative activities and from diverting people — mainly young people — from offending. I mentioned a budget of £1∙2 million for allocation to voluntary, statutory and community sectors; today, it is spent mainly on managing adjudicated offenders who have been through the courts and who may be violent and dangerous. It assists Cheryl and me through the multi-agency procedures for the assessment and management of sex offenders (MASRAM) process to manage dangerous offenders.

650. Of the 4,000 offenders that we supervise, approximately 250 are young people; the remainder are managed or receive services from the Youth Justice Agency. That said, the Probation Board has a long history of working with community groups in diversion and prevention.

651. I am keen to discuss the options with Ms Ní Chuilín later.

652. Mr McFarland: I need further clarity in three areas.

653. First, under the traditional system offenders went through the courts and then to prison, where the Prison Service looked after them; it was given plenty of money to keep them occupied and to put them through courses and programmes. The Probation Board looked after them when they were released to try to ensure that they did not reoffend. However, I gather that the Probation Board has now taken over a number of what were formerly in-prison programmes. It is present at the sentencing; it monitors the prisoner during his term of imprisonment; and it looks after him, in its traditional role, on his release.

654. Will the Prison Service transfer a load of money to the Probation Board to pay for the in-prison activities, which the board is now encouraged to do through its programmes? How much discussion has taken place between the Probation Board and the Prison Service about that? Where do the lines of demarcation run? They used to be fairly clear: the Prison Service ran the prisons, and the Probation Board supervised former prisoners on their release. Now that the Probation Board is involved with offenders throughout, how does one clarify who does what and which money goes where?

655. Secondly, I heard on the radio this morning that some 54% of those in prison are there through fine defaults. The logic is that if most of those could be dealt with in the community, the prison population would drop by 54%. The issue of sentencing was raised earlier: the public expects prisoners to serve their terms.

656. Thirdly, where does punishment come into it? Society is worried that the idea of punishing people for crimes has been lost. The witnesses said that offenders were incarcerated to protect the public; traditionally, however, prison has partially been about the loss of liberty as a punishment. The public expects those who have done wrong to be punished.

657. The public does not regard making serious fine defaulters grow tulips for the council as punishment. Where does punishment come into the Probation Board’s remit? My question is long, but it has three parts.

658. Mr McCaughey: I will try to deal with some of your questions and ask my colleagues to keep thinking rapidly while I talk.

659. The Probation Board will have statutory responsibility for prisoners when they leave prison; previously, prisoners agreed to work with us voluntarily. With the introduction of custody probation orders in the late 1990s, more people were sentenced to imprisonment followed by a period of supervision. That is why the Probation Board is supervising 60% of the prison population when they are released.

660. Delivering the legislation depends on a well-resourced Probation Board; that is critical. Discussions are ongoing about who gets what share of the cake. However, the Probation Board needs the resources that it has asked for in order to manage people safely in the community. It might involve a reallocation of budgets, but that is a matter for other people.

661. Sending people to prison and depriving them of their liberty is punishment. However, once we have incarcerated someone, we are obliged to address why they are in prison in the first place. I see the Probation Board as offender managers: urging, promoting, encouraging and being satisfied that the necessary services are delivered. We must make progress on how we manage people while they are in prison. Prison regimes must change slightly — and in some cases considerably — to focus on criminogenic needs and the reasons for people offending in the first place; programmes must be available so that when offenders leave prison they will be much less likely to reoffend.

662. An analysis of the prison population shows that many have problems with literacy, have rarely worked and have addiction or mental-health problems. Those issues are not simply criminal justice matters; they will affect every Department. The Probation Board will seek, advocate and promote an interdepartmental strategy to reduce offending; that is how we will deliver our services in prisons.

663. Mr McFarland: I suspect that Robin Masefield would say, fairly emphatically, that that is part of the Prison Service’s remit; whether it is effective is another matter. Mr McCaughey may disagree with that.

664. Mr Masefield would say that that is exactly what he does: he is responsible for ensuring that prisoners have courses, that their needs are identified and that they can become new people. Has the Probation Board agreed with the Prison Service that the Probation Board will henceforth rehabilitate people while they are in prison?

665. Mr McCaughey: Robin Masefield is responsible for prisoners when they are in his prisons; he holds them in secure containment. From 2007 onwards, the Probation Board has much more to offer in working with prisoners to change their distorted thinking and behaviour. The Probation Board, along with the Prison Service, has agreed a resettlement strategy and a resettlement implementation plan, and that is why we are both using similar words.

666. We agree that prisons must change, that programmes must be delivered and that the reconviction rates for some offender groups are much too high and require a radical change.

667. Ms Louise Cooper (Probation Board for Northern Ireland): I also heard the figure that was quoted this morning on fine default. I refer the Committee to figures on prison receptions in 2006. The figures, which were published by the NIO, show that there were about 6,400 receptions to prison during those 12 months; of those about 1,300 were received under sentence of immediate custody, and 1,951 were for fine default. Therefore 30% of receptions to custody were for fine default. Those people tend to serve between four and 11 days in custody, but on any given day fine defaulters make up between 2% and 3% of the population in custody.

668. Mr McFarland: Therefore the figure that I gave of 54% was a bit off the mark.

669. Ms Cooper: I am not sure where that figure came from.

670. The Chairperson: We might also hear from the Criminal Justice Inspection (CJI) on that issue as it is mentioned in its written submission. Someone may inadvertently have a mobile phone on, as I am told that it is interfering with reception. Will everyone check their mobile phone, or any other electronic device, to ensure that they are switched off?

671. Mr Attwood: I am tempted to ask the representatives of the Probation Board their view on the proposed new prison at Magilligan, but I am sure that they will not want to go into that now.

672. My questions return to themes that were raised earlier. First, the evidence given to the Committee by the CJI, which will be speaking next, shows that the number of prisoners in England and Wales with indeterminate sentences increased from about 5,500 to 9,500 when the scope for indeterminate sentences was increased. I am mindful that Brian said that the prison population here is less than that in England and Wales, so is 50% your best guess of the likely increase in your work? After all, there was an increase of 80% in England and Wales in the number of people who came under a new regime. That has consequences for resources.

673. Ms Cooper: Several elements in the Northern Ireland legislation have tried to take account of the changes in England. First, there is to be more discretion in sentencing, whether a life sentence, an indeterminate sentence or an extended custodial sentence. Secondly, the legislation proposes the removal of the presumption of dangerousness in Northern Ireland. That means that the presence of dangerousness in an individual case would have to be demonstrated in court. Therefore an increase in our workload of 50% is our best estimate.

674. Mr Attwood: Although one cannot compare jurisdictions, more seems to have happened in other jurisdictions than is anticipated here.

675. My second question is about resources. The devolution of justice and policing may have become more uncertain in the past 24 hours; however, I understand that when those powers are devolved, the budget for them will not be ring-fenced but will be part of the overall Budget. There will be a temptation to borrow from the policing and justice budget to use it for other purposes. Given the severe comprehensive spending review, and given the belief of the Probation Board and the CJI, among others, that the biggest consequences of the new proposals will be financial, why do you say that there has been sensible and well-based dialogue with the NIO about resources?

676. I am sure that that may be the case, but does it ensure a sensible and well-based outcome, taking into account all the various factors? As you said, Brian, if you do not secure the necessary money, the new architecture will become much more unstable.

677. Mr Spence: The member is profoundly correct. There has been serious discussion about the resources that will be required, based on the available evidence, which has enabled us to ask for the staff resources that we need. We have also spoken to the Northern Ireland Office about the level of the resources that have gone into probation over the last five years in GB, which is considerably higher than the level for Northern Ireland, although care must be taken to compare like with like.

678. We are reasonably happy that the facts have been put on the table. We do not yet know the final outcome — how much of the cake we will get over the next few years. If devolution of authority for policing and justice takes place, there will inevitably be a fight about what aspects of the law-and-order budget should be increased, remain the same or decreased to pay for other services.

679. Mr Graham Kelly: That sums it up.

680. Mr Attwood: I have one more question, which I ask to afford the Committee a bit of narrative. With respect to the critical aspects of the new legislation, the public is most interested in the MASRAM developments. Elements that were not previously on a statutory footing will become statutory; and there will be more inter-agency work. For the benefit of the Committee and the public, could the witnesses explain how the new statutory — and other — proposals, arising from the Order, will be better? How they will ensure that the risk to the community from dangerous offenders and sex offenders will be minimised?

681. Ms Lamont: In 2005, Criminal Justice Inspection Northern Ireland recommended that existing arrangements within MASRAM, which were then voluntary, should be put on a statutory footing. The rationale was that that would ensure that agencies take responsibility for delivering public protection.

682. Some of my colleagues have already said that it is everyone’s duty and responsibility, in that respect, to add to the protection of the public. One feature of that will be that resources are dedicated to the co-responsible agencies: the Probation Board, the Police Service, the Prison Service and the various trusts. They must sign up to, and deliver, those responsibilities.

683. That work will be enhanced enormously by another recommendation by Criminal Justice Inspection Northern Ireland: for development of a co-located public-protection team. It is only right that resources be dedicated to ensure the oversight and management of those offenders who present the greatest risk in the community. Plans are already afoot within the Probation Board, and with our other partner in this, the Police Service, to create that team. That will be firmly in place before the Order becomes law. The mandatory regulations and the cohesiveness of the co-located public protection team are two major factors ensuring that current delivery, within MASRAM, will be enhanced. I am mindful that it will extend to violent offenders as well, so that the range of offenders to which it applies will be broadened.

684. Dr Farry: Most points have already been covered, but I seek clarification of one small aspect. Comments were made earlier about the need to protect society from certain offenders in the long term. Were the witnesses suggesting, at one stage, that there could be difficulties with the burden of proof for someone on an ICS, in demonstrating that he or she is no longer a threat and is fit to come off that type of sentence? Do you think that the burden of proof, with respect to that matter, is correctly balanced? Does it need to be rebalanced?

685. Mr McCaughey: My view is that the assessment that is completed at the court stage will clearly identify the factors that cause the person to offend and what the risks are, and it will require certain programmes to be delivered to that individual while he or she is in prison. The assessment must be ongoing, and it must be supported by psychological and psychiatric expertise, and whatever other services are necessary. My major concern is that we must ensure delivery of those programmes.

686. Ms Cooper: One of the aligned issues is the role of parole commissioners. Those arrangements must be in place ahead of time, with structures and procedures clearly set out for the new system.

687. The Chairperson: Thank you very much. For the sake of completeness, who will carry out the assessment of dangerousness? Will that be done by the Probation Board or by another agency?

688. Mr McCaughey: As I understand the legislation, that will be done by the Probation Board, supported by psychology and psychiatry services.

689. The Chairperson: One final question concerns supervised activity orders: what type of activity do you envisage offenders carrying out? Some members have raised concerns that people might be involved in rather frivolous activities that might not suit —

690. Mr Wells: Flower arranging and pottery?

691. The Chairperson: Those are very fine pursuits.

692. Mr Weir: I presume that those go hand in hand. Once one has made the pots, one can put the flowers in them.

693. Mr Wells: I do not see those as punishments.

694. The Chairperson: They might represent punishment for some people.

695. Mr McCaughey: I shall ask Graham Kelly to answer that question in detail. My understanding is that, if people are in default of fine payments, we will examine the issue of victims, and the need to make reparation for what they have done. The Probation Board’s thrust will be for transparency in saying that if a person has committed an offence and says that he or she is sorry, we will ask them how they intend to make amends. The areas that the person identifies may not be the same as those in the Probation Board’s mind. The Probation Board must identify areas of need with community and voluntary groups and ask them how it can work productively with them to allow offenders to show that they really are sorry for what they have done.

696. Mr Graham Kelly: The activities will be purposeful, unpaid work. They will be relevant to the offences, bearing in mind that they are an alternative to paying a fine. For example, if a person were fined for daubing graffiti on a wall, he or she would have to remove the graffiti. It is not dissimilar to our current community-service work. The difference is that fewer hours would be worked, because the work will be in proportion to the amount of the unpaid fine. Offenders will undertake purposeful, unpaid work for the benefit of the community, and relating to the offence for which they were fined.

697. The Chairperson: That concludes the session. Thank you.

698. Mr McCaughey: So that the Committee is absolutely clear, the new legislation will definitely expand the Probation Board’s role and place it at the centre of criminal justice in Northern Ireland. I do not wish the Committee to have the impression that there are any issues between the board and any other criminal-justice organisation.

699. I wish to emphasise that the working partnership between the Probation Board for Northern Ireland and the Prison Service is at the highest level, and that we will deliver the new legislation only through that partnership.

700. The Chairperson: Once again, I thank you for coming. Your evidence has been useful and helpful. If any other points arise, we will contact you and, hopefully, you will be able to respond.

701. I now invite the Chief Inspector of Criminal Justice, Kit Chivers, and his colleagues to come to the table.

702. You and your colleagues are welcome, Mr Chivers. I thank you for the written submission that you have made, which has been helpful to the Committee.

703. Mr Kit Chivers (Criminal Justice Inspection Northern Ireland):

704. I am Kit Chivers, the Chief Inspector of Criminal Justice, my deputy is Brendan McGuigan, and Tom McGonigle is the inspector who specialises in the downstream end of criminal justice — in other words, prison and probation. He is the author of the reports that relate to public-protection issues.

705. We are glad to have an opportunity to give evidence on the draft Order because it addresses one area of business to which we have devoted considerable attention. Over the past three years — in March 2005, December 2006 and November 2007 — we published three reports relating to the management of dangerous and sexual offenders, which Ms Lamont referred to during the previous evidence session.

706. In the first report, we called for the ending of automatic 50% remission for those categories of offenders, and the introduction of a regime more like that which was introduced in England and Wales by the Criminal Justice Act 2003, involving extended and indeterminate sentences regulated by our parole board. At the same time, we noted that there were difficulties with the arrangements in England and Wales, where the Parole Board was struggling to cope with the volume of cases. Over the following two years, it became increasingly clear that the legislation for England and Wales was defective. The prisons and the probation service there were overwhelmed by the number of prisoners who had been given indeterminate sentences for relatively minor offences, often with a ludicrously short tariff. An extreme example was a case in which 28 days was the indeterminate sentence.

707. We were concerned that Northern Ireland should learn the lessons from that experience. The draft Order addresses those concerns in several ways, as I am sure that the NIO will have explained to the Committee. It gives judges more discretion and there is no presumption of risk, so it is an open question for the judge to decide in each case whether there is a real risk of a serious further offence. The judge then has a choice between ICS and ECS, whereas in England they were forced into imposing an indeterminate custodial sentence. Public-protection sentences here will be able to be imposed only on indictment, which will cut out a lot of the minor offences, such as minor bodily harm, which received ICS in England. There will be a minimum two-year tariff for an ICS and a one-year tariff for an ECS, which provides another safeguard against the inappropriate use of those sentences. That is all to the good.

708. I am confident that judges will use the new provisions wisely. Nevertheless, as has been said, there will be a substantial additional burden for the Probation Board for Northern Ireland and the Prison Service.

709. It is difficult to estimate how many additional prison places will be required, although the Minister has mentioned that there might be a need for 120. The total will build slowly over many years, and the eventual total will depend on a number of variables, particularly the policy and practice of the parole commissioners. The life sentence review commissioners have been cautious, and I suggest that any forecast be based on the assumption that the parole commissioners behave likewise. The parole commissioners — similar to the parole board in England — will be subject to criticism when a further serious offence is committed by someone who is released on licence. Furthermore, the parole commissioners will have a higher public profile than the licence and review commissioners have had.

710. The Prison Service must raise its game significantly in how it manages lifers and indeterminate custodial sentence prisoners. It has been slow to introduce new standards for lifer management. Opportunities for lifers are limited, and much more use could be made of the existing prison estate — for instance, the working-out unit and Foyleview — to provide them with opportunities for progression.

711. Prison officers must be more involved in the organising of offender programmes. The lack of involvement of prison officers in the running of courses is, as Mr McFarland said, why the Probation Board is so involved. The Prison Service has not pulled its weight in that regard, and Tom McGonigle’s work on resettlement has shown that. The current outcomes are disappointing, and the demand for effective courses will be increased dramatically as a result of the draft Criminal Justice (Northern Ireland) Order 2007. There is no specific regime at present for women or for young male offenders at Hydebank Wood, where there are six lifers in each category, and that will have to change. The increase in the burden on the Probation Board will be proportionately greater than that on the Prison Service, particularly as it will be providing programmes for fine defaulters. It will be crucially important that the Prison Service be properly resourced.

712. The workload of the parole commissioners will be much heavier than that of the life sentence review commissioners, and they will need to be resourced to cope with that workload. There are a lot of life sentence review commissioners, and I do not think that there is a need for any more. However, a significantly higher input will be required from the members of the commission. Fewer members, in fact, might help to ensure consistency of practice, because that will be important when they are exposed to criticism. There must be consistency of practice in making decisions that will be in the public eye and subject to public criticism.

713. In my letter to the Committee, I mentioned other areas of the justice system in which CJINI is working. My main reason for doing that was because this is our first opportunity to appear before a Committee. I am delighted that this meeting happened during my time of office, because the CJINI was set up with the purpose of serving the Assembly. I am glad to be here, and I am happy to receive your questions and engage with you on any of the topics that have been raised.

714. The Chairperson: Thank you for your interesting and challenging presentation. Will you expand on the English experience? What pitfalls should we be aware of, bearing in mind the changes that will be made?

715. Mr Chivers: Safeguards have been built into the legislation. In England, it was made possible for the magistrate’s courts to impose public-protection sentences for what were often minor offences. Therefore, the whole system — including the Prison Service and the Probation Board — was overwhelmed with short-tariff sentences; for instance, many three-month tariffs for indeterminate sentences. If an offender is in custody for less than a year, it is impossible for him or her to do the courses that are required to satisfy the Parole Board that they are safe to be released. Some people have appealed decisions on the grounds that they were denied their human right to show that they were safe for release.

716. That is clearly unacceptable. Sufficient safeguards are in place, provided that the judges use the sentences wisely, which I have no doubt they will, and that the life sentence review commissioners, or parole commissioners as they will become known, are robust in their decision-making. There is a danger that they might be overcautious, which could lead to a silting of people not being released when they could be. As long as the judges are robust and make fair decisions that releasing an individual into the community presents a reasonable risk, it should be OK.

717. The Chairperson: The changes represent a radical shift in sentencing in Northern Ireland. Is it not quite different from anything that went before?

718. Mr Chivers: It is a major change, but one that many consider long overdue. The calls for improved public protection have been strong, and it seemed to my inspectorate, and to many other informed bodies, that such provisions are essential.

719. The Chairperson: In the main, you are supportive of the changes. Quite rightly, you highlighted the problems that arose in England. Nonetheless, do you consider that the changes represent a move in the right direction?

720. Mr Chivers: Yes; very much so. We strongly support the legislation, which is in accordance with recommendations that were made in 2005.

721. Dr Farry: I welcome you and your team, Kit. A topic that you did not cover in your oral presentation, but was included in your written submission and in the legislation, is the juvenile justice centre, in which you and I have a great interest. You essentially argue that there ought to be a default presumption that 17-year-old males should be directed towards the juvenile justice centre, rather than Hydebank. However, you suggested that the practice, at present, is the other way round. Will you elaborate on that?

722. Mr Chivers: It seemed to me that the legislation was drafted in such a way that 17-year-old offenders would be sent to the juvenile justice centre only if Hydebank was unsuitable. I am sure that it should be the other way round: the presumption should be that any child should be sent to the juvenile justice centre, where there is a much better regime for juveniles, except in the case of extremely difficult 17-year-old males, and possibly a few younger males. I will invite Tom to comment on that in a moment. We found that the regime for juveniles at Hydebank was totally unsatisfactory: they should not be sent there if it can possibly be avoided.

723. Dr Farry: Before Tom contributes, I want to expand on that. Is the intention of the Order different to the current practice, which I understand is geared towards sending juveniles to Hydebank?

724. Mr Chivers: It seemed to be different. I cannot pretend to be an expert on the text of the Order but, as I read it, it seemed to state the reverse.

725. Mr Tom McGonigle (Criminal Justice Inspection Northern Ireland): The point is that we were not involved in the drafting of the legislation. It may be that that issue can be explained, but, on first reading, we thought that there was a question to be raised, and we considered it appropriate to raise it in this forum. We are particularly concerned about the custodial care of juveniles, and that issue must be dealt with properly.

726. When we recently inspected Hydebank Wood Young Offenders Centre, several 17-year-olds were there, and the regime is not at all ideal for them. One improvement is that very few 17-year-old girls were sent to Ash House at Hydebank over the past year, and we want to see the same improvement in relation to young males.

727. The Chairperson: To assist Dr Farry and other colleagues, through the Committee Clerk, we have asked NIO officials to comment on that aspect of the draft Order, and they should come back to us. They have received a copy of the comments made by the inspectorate, and we await their response.

728. Mr McFarland: I am keen on the planned changes, because they accord responsibility. If something goes wrong, it is clear who should be held to account. I am still not clear on who will be responsible when offenders are in prison for rehabilitation. Traditionally, as I understand it, that has been the responsibility of the Prison Service, for which it was allocated money.

729. It sounds like the task of monitoring and administering programmes to offenders will be within the Probation Board’s remit. Where is the line of demarcation? Co-operation is great, in an ideal world, but in this case, empires are being interfered with. Who will get the glory if the strategy succeeds, or carry the can if it fails?

730. Mr Chivers: Tom wrote the book on the resettlement strategy, so I will let him answer that.

731. Mr McGonigle: The Prison Service currently has service-level agreements with the Probation Board to deliver welfare services and offender-behaviour programmes to prisoners.

732. Mr McFarland: Is the Prison Service still responsible for that?

733. Mr McGonigle: Yes; it is primarily responsible for administering those services to serving prisoners. Although we welcome the new legislation, we are concerned about the delivery of programmes while prisoners are in custody. For example, of the some 1,300 people who were given custodial sentences in 2006-07, only 250-odd participated in programmes. Therefore, there is a major issue over the eligibility of prisoners for programmes — if a prisoner denies the offence they were convicted of, appeals their sentence, is not deemed sufficiently high risk, or has insufficient time of their sentence left to serve, they cannot take part in a programme. That significantly reduces the number of prisoners who can take part in programmes.

734. The other main problem is that there is not enough prison staff who are trained and willing to do that work to run the programmes. As the Chief Inspector of the Probation Board said, we have seen the problems that arose in England and Wales and have seen successful challenges in the High Court by prisoners. That undermines the criminal justice system, which is something that we want to avoid in Northern Ireland.

735. Therefore, we have resolved to probe the issue of programme delivery for people who are on ECS, ICS and life sentences, because if those prisoners are prepared to undertake the programmes, which society expects them to, but are not able to because the system cannot deliver them, the criminal justice system looks bad — particularly if there are successful High Court appeals.

736. Mr McFarland: I got the impression from the evidence of the Probation Board witnesses that they believe that they are taking over the Prison Service role by monitoring offenders during the court phase, delivering the programmes during the prison phase, and carrying out their traditional role when offenders are released. I got the impression that the Probation Board thinks that it has an empire on the rise and will need the money to finance that. Will the service-level agreements still be with the Prison Service? Despite the Probation Board’s increased role, is the Prison Service still responsible for delivery?

737. Mr McGonigle: Service-level agreements will continue. The role and expectations of the Probation Board will be increased mostly after a prisoner finished their sentence. However, while the prisoner is in custody, the Prison Service is responsible for delivering those programmes.

738. The Chairperson: What incentives are there in the new system for prisoners to undertake programmes?

739. Mr McGonigle: The incentives are the parole commissioners, whose introduction we advocated in our submission. That should deal with those prisoners who deny the offence that they were convicted of, which is positive.

740. Ms Ni Chuilín: The witnesses have been very clear when talking about the programmes. However, I am concerned about the implications for women prisoners in Hydebank Wood. If there is a finite budget, what impact will that have for women, particularly the younger ones, in the system?

741. Mr Chivers: Criminal Justice Inspection Northern Ireland has made it clear that there should be a separate facility for women. That is an absolute priority. When the Prison Service is considering the new estate that it needs, it must make provision for a separate facility for women. In that separate facility, there must be proper provision for the relatively small number of life-sentence prisoners housed there.

742. They must have proper provision, because it would be intolerable for females to be less well treated than male prisoners. Whatever the budgetary restraints, I regard that as a priority.

743. Ms Ní Chuilín: It has happened before.

744. Mr Chivers: In the past, women were seriously neglected and regarded as a relatively insignificant addition to the prison population. By modern standards of human rights and equality, it is unthinkable that female prisoners should be treated in such a manner. To be fair, the Northern Ireland Affairs Select Committee endorsed that in a report that it published today, and I am confident that the treatment of female prisoners will feature in the plans for the Prison Service.

745. The Chairperson: How many women are we talking about?

746. Mr Chivers: Forty-four, who have committed offences from fine-defaulting to murder.

747. Mr Brendan McGuigan (Criminal Justice Inspection Northern Ireland): For females, there is no alternative to prison; there is no hostel accommodation, which is appalling because it is not necessary for many female offenders to be in prison. Hostels would be much more appropriate.

748. Ms Ní Chuilín: I am pleased to hear that.

749. Mr McCartney: Are there already enough life sentence review commissioners?

750. Mr Chivers: Many commissioners work only a few sitting hours. For greater consistency, there should be fewer of them but they should work longer.

751. Mr McCartney: In the past, they dealt with life-sentence prisoners. Will the new category of prisoners affect the commissioners’ ability to do their jobs?

752. Mr Chivers: They will be responsible for three categories of prisoner: people with mandatory, indeterminate and extended life sentences. That will entail a much greater volume of work, and the sentences will be subject to much more public scrutiny. Therefore they will have to demonstrate that decisions have been taken properly and consistently and can be defended in public.

753. Mr McCartney: On the subject of programme delivery, would the public be better served if all prisoners were held under a single regime? Given the proposed additional facilities in the prison at Magilligan, the temptation might be to spread the prison population around. In order to use resources better, should the people in those three categories be held in a single place?

754. Mr McGonigle: That is a fair comment. A difficulty for the Northern Ireland Prison Service is managing the logistics of a small estate. Good practice suggests that remanded prisoners should be kept separate from sentenced prisoners and that sentenced prisoners should be able to access programmes. In addition, the Prison Service must also keep republican and loyalist prisoners separated, and it must deal with fine-defaulters, women, and young prisoners. There will also be a separate category of recall prisoners. It is well known that such prisoners are more difficult to manage and pose a greater suicide risk because they are more unsettled. That will introduce yet another category to the complex mix. Mr McCartney’s suggestion is good, but it would probably be difficult to deliver.

755. Mr Weir: How are recall prisoners defined?

756. Mr McGonigle: They are offenders who have not complied with probation requirements while on licence.

757. Mr McFarland: One of the problems with placing such prisoners is their families’ human rights. Are prisoners who live in the north-west put in prisons there so that their families can have easy access to them?

758. Mr McGonigle: Compared to across the water, where families must often travel hundreds of miles, ease of access is not really an issue in Northern Ireland. Ideally, prisoners should be close to home —

759. Mr McFarland: The issue is cited in relation to families’ rights to easy access.

760. The Chairperson: Distance is relative.

761. Mr McCartney: A prisoner’s security rating is what matters here. Maghaberry is a high-security prison; that is where a high-security prisoner will go, whether they are from Derry or not.

762. The Chairperson: We are straying into matters relating to the prison establishment. The changes will affect the Prison Service, which is to give evidence to the Committee. How does the Criminal Justice Inspection view the changes? The Probation Board has already discussed them in its submission.

763. Mr Chivers: The figure that the Minister gave for the increase in the prison population is some 120 additional places, which will build up slowly over many years. That would accord roughly with our feel for the additional number of people who would be likely to end up in the system.

764. The Chairperson: Therefore the Prison Service will not be flooded with people.

765. Mr Chivers: There is a strong upward trend to begin with; the prison population has been rising steadily at the rate of about 100 a year for the past few years. There will be some offset as a result of reducing the number of fine-defaulters, but fine-defaulters comprise only 2% or 3% of the prison population.

766. The sentencing decisions will be critical. Engaging with judges about how the legislation will be used and about sentencing policy generally will be crucial if we are to avoid an explosion in the prison population. Northern Ireland has the lowest proportion of the population in prison than any part of the United Kingdom — almost half that of England, Wales or Scotland. We must try to keep to that level if at all possible.

767. The Chairperson: Since the prison population will increase, how will an indeterminate sentence affect prisoners’ lives in prison? Will it make them more or less co-operative? The increase will not be huge, but could such prisoners be more disruptive, more unco-operative and more unhelpful with the regime?

768. Mr Chivers: As Tom said, I hope that they will have every incentive to be good prisoners; they will be trying as hard as possible to get a good report for the parole commissioners.

769. Mr McGonigle: A great deal depends on the tariff; prisoners should know when they will be considered for release. However, a significant change of culture in the Prison Service is equally important: prison staff must engage more with prisoners, and the Criminal Justice Inspection advocates that strongly. Traditionally, that has not been the case in Northern Ireland. Staff engaging proactively with prisoners and helping them to plan in prison for life after release — even though that may be some distance ahead — is a fundamental requirement of the Prison Service. There is a journey to be travelled.

770. The Chairperson: How would you characterise the relationship between prisoners and prison staff at present?

771. Mr McGonigle: It is very much an arms-length relationship with the majority of prisoners. However, there are some notable exceptions where there is good interaction, but most prison staff have limited engagement with prisoners: there is no personal officer scheme in any prison. A fundamental expectation in most good prison services is engagement between a prisoner and an officer who has some responsibility for their welfare.

772. The Chairperson: There is to be supervision rather than just locking people up.

773. Mr Chivers: We have to consider the history of the relationship between prisoners and prison staff: in the past, prison officers in Northern Ireland felt threatened by prisoners. Their defensive reaction was not to talk to prisoners or to be on first-name terms with them: prisoners were just locked up and let out. As Tom said, that must change. The Probation Board has had to step into the gap and do most of the creative work in prisons because there was no interaction and no personal-officer relationship between prisoners and prison staff. In an English prison, officers engage fully with prisoners, work with them and encourage them to take courses in education that will help them to make a success of their lives when they leave prison.

774. It will be a huge cultural change for Northern Ireland, although Robin Masefield is very much seized of it. It will be a huge mountain to shift.

775. Mr Attwood: I found the CJI’s submission particularly useful because it broke the subject down into manageable sections. Has the annex to the submission, which deals with the broader matters, been given to the Assembly and Executive Review Committee?

776. Mr Chivers: Yes.

777. Mr Attwood: Parts of the submission are relevant to the work of that Committee; we might return to it again.

778. I want to find out more about the potential increase in the number of prisoners that the Probation Board will have to deal with. Unless there is certainty about the figures, resource planning may go to the wall. It seems that the rise in the prison population in England since the scope for indeterminate sentences was increased has caused tensions, and your evidence suggests that there has been an 80% increase in the prison population there. While taking on board the obvious differences between England and here, we can, nonetheless, expect an increase of perhaps 120 prisoners.

779. At the same time, you said that people will act very cautiously as regards prisoner management, for obvious reasons. I am worried that, as a consequence, there will be more prisoners and probation work, but that we will be working from a financial baseline that is too low. Given the increase in the prison population in England, could the projections for here be too low, and is there a risk that the budget will be too low?

780. Mr Chivers: That is a question for the NIO rather than for us. We look at matters as they are, but we are not policy formulators; we do not foretell the future in that way. However, we are conscious of the risks. You are absolutely right to identify that risk, and much will depend on the behaviours of the various decision makers. We must do whatever we can to constrain the growth of the prison population, because the fact that Northern Ireland has a fairly low prison population is one of its greatest assets.

781. Mr Attwood: Are you still prepared to validate the projected increase of 120 prisoners?

782. Mr Chivers: It feels about right to us, given the characters we know to be out there.

783. Mr McGuigan: There were hugely disparate projections in England and Wales, which ended up being totally inaccurate. We must be mindful of that, too.

784. The Chairperson: Over what time do you predict the increase of 120 prisoners?

785. Mr Chivers: It might be over 10 years; the numbers would build up gradually as decisions are taken.

786. The Chairperson: Taken over that period, the impact would not be huge.

787. Mr Chivers: No. That is a slight reassurance for the Probation Board; although it will be taking on a much bigger burden of work, the numbers will build up quite slowly as the sentences are introduced.

788. Mr McGuigan: If the projections are correct, the increase should not be immediate, and that is important. It is also worth mentioning that this matter will affect not just the Prison Service and the Probation Board — although, obviously, as statutory agencies, they will be centrally affected — it will also affect the voluntary sector. CJI is carrying out an inspection of offender hostels, whose work is absolutely critical. Such hostels take in prisoners who have been released from prison — usually the highest-risk prisoners — so that there is some supervision as they return to the community. Therefore, if more prisoners are classified as dangerous and a risk to society, the voluntary sector will require additional resources, too.

789. Mr Chivers: Brendan mentioned the importance of a hostel for women, and we strongly endorse the view that good, well-run offender hostels can make a significant contribution; they are well worth investing in.

790. Mr McGuigan: We will publish a report on offender hostels early in the new year. I am sure that the Committee has heard presentations on the possibility of establishing co-located public-protection teams. The CJI has examined the management of sex offenders over the past three years, and we hope that such a proposal is not simply aspirational but that steps will be taken to establish such teams.

791. They are not covered in the legislation, but we view them as another useful tool in the armoury of public protection. The sentencing provisions of the Criminal Justice (Northern Ireland) Order 2007 are one useful tool, but a co-located, multi-agency public-protection team is required.

792. This is a small jurisdiction of 1·7 million people, in which there is a significant number of registered sex offenders. However, the small number of really dangerous sex offenders could be thoroughly monitored by a co-located public-protection team.

793. The partnership working that has been established is the best that we have seen regarding statutory agencies working together to achieve results. One small extra push is now required. I fervently hope that the Committee does not lose sight of that. If the Committee receives presentations from the criminal justice organisations, perhaps it could probe to ensure that establishing such a team is high on their agenda.

794. Managing such offenders when they are released is critical; the offender hostels do amazing work, much of which is not recognised. The other element that is required is strong public-protection teams that can step in and work effectively with people who present risks. The arrangements are fit for purpose, but, in this small jurisdiction, we can make a significant difference with a little additional push.

795. Mr Attwood: Should the inter-agency public-protection team have a statutory basis rather than be subject to guidance from the Secretary of State or from any future justice Minister?

796. Mr Chivers: Yes; it will be promulgated as part of the guidance, which will give it a statutory basis. The guidance will be statutory.

797. The Chairperson: How many commissioners are there?

798. Mr Chivers: Twenty-four.

799. The Chairperson: You suggested that perhaps there could be fewer. How many people should make up such a group?

800. Mr Chivers: I do not have a view on that, although you may wish to discuss it with Mr Peter Smith.

801. The Chairperson: Mr Smith is to attend our meeting next week.

802. Mr Attwood: You made some rigorous comments about the prison establishment. As the Chairperson said, Mr Masefield will be attending a Committee meeting in January. I have a sense that Mr Masefield will be a more reforming, free-thinking Director General of the Prison Service. Is the Prison Officers Association fit for purpose in establishing a new relationship with prisoners in future?

803. Mr Chivers: I would rather not comment on that. [Laughter.] Robin Masefield has taken important strides to achieve progress in the relationship with prison officers. However, there is much more to do.

804. The Chairperson: Thank you very much. That was an intriguing answer. I thank the witnesses for attending today, in particular Mr Chivers. That was an interesting session and was helpful to us in our deliberations. If we need to ask any further questions, I am sure that you will answer them.

805. Mr Chivers: We are always at your service.

806. The Chairperson: Thank you.

18 December 2007

Members present for all or part of the proceedings:
Mr Alban Maginness (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Alex Attwood
Mr Nelson McCausland
Mr Alan McFarland
Mr John O’Dowd
Mr Peter Weir

Witnesses:

807. The Chairperson (Mr A Maginness): We now move to the oral evidence session. I am pleased to welcome Mr Peter Smith QC, the chairman of the Life Sentence Review Commissioners, who will chair the new parole commission when the Order becomes law.

808. Thank you, Mr Smith, for the paper that you sent to the Committee; it was very helpful and straight to the point — which we like. I ask members to note that that paper can be found in their meeting packs. For the next 15 minutes, Mr Smith may make a submission on any aspects of the Order that he feels are relevant to the Committee’s deliberations, and then members may ask questions. If you wish to make any comments now, Mr Smith, I would be grateful.

809. Mr Peter Smith QC (Life Sentence Review Commissioners): I do not have much to add to my written submission. Today’s semi-formal presentation and my written submission are constrained by the fact that the Life Sentence Review Commissioners have no corporate view on many aspects of the new legislation, as I indicated at the beginning of my written submission. Having said that, I am happy to comment personally on any aspect of the legislation or on our anticipated work — I am certainly not attempting to be evasive.

810. In my written submission to the Committee, I cited one issue that I take every possible opportunity to highlight — although I do not always get much response — which is the lack of an open prison in Northern Ireland. I do not wish to take up the Committee’s time by dealing with matters in which members are not specifically interested. However, the general view of the commissioners is that the lack of such a facility creates immense complications in the assessment of risk posed by prisoners whom we are considering releasing into the community. That issue also affects the preparation of those prisoners for leading constructive lives on leaving prison. That is a major disadvantage to Northern Ireland.

811. Under the conventional model in England and Wales, lifers will not be released unless they have spent three years in an open prison. Northern Ireland does not have such a facility. There is a well-organised and well-run prisoner-assessment unit, but that is a very different animal to an open prison. The duration of a standard course in the prisoner-assessment unit is only nine months.

812. The lack of an open prison is, perhaps, not particularly significant in the context of prisoners who have been given extended sentences. However, for prisoners who have received indeterminate sentences, the facility of an open prison would be an important asset in testing and preparing them for eventual release. That issue does not figure large in the document that I prepared, but I wish to emphasise its importance. I suggest that Northern Ireland will have to consider that issue in the longer term, if it is ever to make the scheme and the systems work properly.

813. The Chairperson: Thank you, Mr Smith. The Committee will hear from the Prison Service at a future meeting. Throughout our discussions, it has become clear that the draft Order has significant implications for the Prison Service.

814. Mr Smith QC: Indeed.

815. The Chairperson: You made a useful comment in that regard, and perhaps we shall further explore that issue with the Prison Service. However, when the Probation Board made its submission last week, it was equally clear that the draft Order also has considerable resource implications for that body.

816. You mentioned resource implications in your submission. Will you expand on that reference, and advise us what those might be? Further to that — and this is the most material consideration — given your experience and the collective experience of your fellow commissioners, can you estimate the extent to which the prison population might increase?

817. Mr Smith QC: My colleagues and I consider the resource implications to be potentially extremely demanding. It depends on how the authorities order the arrangements, but, in our view, there is no escaping a substantially increased demand on prison and probation resources. It is envisaged that prisoners, particularly those who have received indeterminate sentences, will have to be assisted in preparing for their release. They must address their offending behaviour and be able to demonstrate that it is safe to release them into the public arena. In order to do that, they require assistance, such as readily available courses. Many such courses are extremely resource heavy, particularly those that require psychologists.

818. Robin Masefield has expressed concern about the further difficulty of recruiting psychologists in Northern Ireland. Many prisoners will never be fit for release unless relatively intensive work is carried out. It is not going too far to envisage that we may in future see a situation whereby a 25-year-old person receives a three-year indeterminate public protection (IPP) sentence — we have been using those terms for so long; I trust that members know what I am referring to when I use the terms IPP sentence and extended public protection (EPP) sentence — and might still be in prison 50 years later because he simply cannot meet the stringent requirements that are laid down in the legislation and the stringent requirements that we, as commissioners, will have to be satisfied of before such a prisoner can be released into the community.

819. The facilities to enable such a prisoner to move from being a risk to public safety to a position whereby he poses only a minimal risk are extremely expensive. That may take a long time: the relevant resources may have to be deployed time and again to prepare that prisoner, and they may never work for that individual. If the resources were not made available, most of the life-sentence prisoners that we deal with would not be capable of addressing their offending without such assistance, and would never be fit for release. There is no escape: unless the resources are deployed, those prisoners will remain in prison indefinitely at enormous public expense, because we will never be satisfied that they no longer pose a risk of serious harm to the public.

820. The preparation of — and assistance to — prisoners for release lays a heavy burden on the resources of the Prison Service’s psychology service. Probation officers are involved in that process too, so demands are also made on that resource.

821. The release of people on licence is heavy on resources, because they have to be supervised in the community in such a way that their recall is triggered should they move from posing an insignificant risk to more than an insignificant risk to public safety. The entire scheme is very expensive. It is inevitable, whether or not the resources I have referred to are deployed, that the prison population is going to rise. That in itself will put pressure on the resources that are available to deal with prisoners generally, and the prisoners that I have mentioned in particular. It is no secret that the proposed legislation will make enormous demands, particularly in an environment in which dealing with prisoners — and even incarcerating prisoners — is extraordinarily expensive.

822. The Chairperson: Have you made any estimate of the number of prisoners that might be added to the present prison population of Northern Ireland?

823. Mr Smith QC: Before the Westminster Northern Ireland Affairs Committee report of last week, I suggested that there might be a 12·5% to 15% increase in the existing prison population of 1,500. We have been asking for figures so that we can make an estimate of the resources that we, as parole commissioners, will require. We have been provided with some figures. We appreciate that because the scheme is not exactly the same as its English counterpart, it is not possible to state that things will work out here in the same way as they did in England. We appreciate that there are difficulties.

824. The authorities have been of assistance by giving us the best figures available. I have only just received those figures; I have not had a chance to analyse them.

825. A report on the BBC news website today said that it was estimated that, by 2022 — which seems a long time away, but perhaps is not so far off — the number of prisoners in Northern Ireland could be 2, 700, which would represent an 80% increase. Some of those prisoners would have been in prison for at least part of the time anyway, because they would have received the old type of sentence. It is quite difficult to work out the figures, although the figures that I have would suggest that the uplift will be at least be of the order of the figures that I mentioned — 12·5% to 15%. That is my interpretation of information that I have very recently received, which I have not had an opportunity to clarify. Taking 1,500 as the figure for the prison population, that would mean an uplift of 200-odd prisoners when the whole scheme is fully up and running.

826. Mr Weir: The main focus seems to be the concern that if the scheme is not resourced properly, it will not be viable. The Probation Board faces a similar situation. You have indicated that the scheme needs to be resourced properly and have mentioned the concern that it is not, at present. I know that it is very difficult to quantify, but has any assessment been made of what level of resources need to be applied to make the scheme work?

827. Mr Smith QC: Do you mean globally, rather than simply our part of it?

828. Mr Weir: Globally, yes.

829. Mr Smith QC: I have not made any attempt to quantify that — the Life Sentence Review Commissioners would not have the information or the expertise to enable us to do that. We have limited ourselves to simply sending a signal as clearly and as strongly as we can. When we were informed that the Government were thinking about going down this road, the first thing that we did was to speak to the Parole Board for England and Wales, which has had experience of IPP and EPP sentences. Again, of course, their scheme is different, and we accept that our scheme is more modest. However, the resource implications and consequences were apparent from talking to them, and they were staggering — the demands were enormous. As I said, the new arrangements here will be such that that problem will be ameliorated to some extent, but we are not in a position to make any calculation as to how much.

830. Mr Attwood: I should know the answer to this question, but I do not, which is always a bad way to start. [Laughter.]

831. Is there any provision within the comprehensive spending review for 2008-11 for increased resources in respect of the new regime?

832. Mr Smith QC: I cannot answer that question. I saw the global figures for criminal justice, which did not seem to increase very dramatically from year to year, but I cannot comment on the components of the calculations.

833. Mr Attwood: I am mindful that we will discuss later the resource allocation arising from the new regime, given that there may be silence within the Budget over the next three years in that regard. I am mindful that there are issues around that Budget in respect of devolution of policing and justice in any case. That is a matter of which the Committee must be very mindful.

834. Witnesses from the Probation Board came before the Committee last week, and they were mindful that there was a different context and environment here in respect of offending. Their estimate was that the prison population would increase slowly, but that it would, nonetheless, increase by 50%, as far as I recall.

835. The Chairperson: The figure was not 50%.

836. Mr Attwood: It was 50% in England and 20% here. Is that right?

837. The Committee Clerk: I understood last week’s witnesses to say that their workload would increase by about 50%, mainly due to increased numbers of prisoners on release.

838. Mr Attwood: Yes, that is right; that was the witnesses’ argument.

839. The Chairperson: I recall a figure of an increase of 120 prisoners — I do not know if anyone else remembers that figure — over a period of 10 or 20 years.

840. Mr Attwood: We could get lost in figures. I wanted to raise a point with Mr Smith about the evidence that he saw today on the BBC News website — if websites can be considered as providing evidence — of an increase of 80% in the prison population over the next 15 years. There have been significant increases in Britain’s prison population, even when the North is not taken into account. The Probation Board believes that its workload may increase by 50%. Therefore, Mr Smith’s estimate that the workload could increase by 15% may be conservative. Therefore, the resource issue may be even bigger than we have imagined it to be.

841. Mr Smith QC: The difficulty is that we do not know what use judges will make of IPP sentences. As I understand it, what happened in England and Wales was that people were surprised that judges were so ready to impose those sentences. Therefore, one has to be careful. I know that Government make those calculations in good faith, and I am not suggesting otherwise. Nevertheless, in England, the Home Office got their calculations on IPP and EPP sentences hopelessly wrong. Therefore, one tends to err on the side of caution when being optimistic about those figures.

842. I have a printout of the news story, from the BBC News website, about the Government’s figures that were released today. It states:

“The government forecasts that the prison population could be as high as 2,700 by 2022.”

843. By my calculation, that constitutes an 80% rise on the current prison population of 1,500. I do not have a breakdown of that figure. I do not know how many of the really expensive type of prisoners, of which we speak, they envisage sentencing and imprisoning.

844. The commissioners also asked the staff who deal with criminal justice at the Northern Ireland Office to help us to find out what the plateau figure might be. We were interested in that figure from a resource perspective. Obviously, there would be a build-up of prisoners. The prediction for 2008-09 is nil, which tells us that something will happen after that period. There is also a build-up of the number of prisoners who are being considered for release, which constitutes the current workload of the Life Sentence Review Commissioners. I am not quite sure which categories are included in their figures — they are not broken down by categories — or precisely what kind of work they envisage us doing. I think of them as figures for all types of prisoners. However, if this is correct, an increase of 120 prisoners cannot be correct.

845. According to the prediction, there will be significantly more prisoners every year. The Life Sentence Review Commissioners do not deal with all the prisoners in that category every year. Therefore, one might — on that view — double the number of prisoners. On that basis, there might be 240. I accept that those people from whom we have enquired have difficulty in estimating figures because of unpredictability. If judges in England and Wales have imposed more IPP sentences than was anticipated, it is a logical conclusion that more IPP sentences may be imposed in Northern Ireland than has been anticipated.

846. Instead of the default position being an EPP sentence, effectively, the default position may be an IPP sentence. We do not know which of those it might be. The outcome will depend on the atmosphere. Will judges feel that crime is rife and that, where the options are available to them, they must protect public safety by imposing an indeterminate sentence? I expect that guidelines will be laid down. Calculations will be easier to make once that happens. However, that will only happen once the legislation has been enacted and those prisoners start to come through.

847. Mr McCartney: Thank you for your submission. Do you think that, under the new regime, there should be more commissioners? Last week, the Committee heard evidence that the number of commissioners should be reduced and that they should become more focused in what they do. Have you any view on that?

848. Mr Smith QC: That is a difficult question. The commissioners are part-timers. Therefore, one cannot calculate their workload and output on the basis that they work for 40 hours a week for 40 weeks a year; the posts do not work like that. In addition, commissioners must also be constantly renewed. One cannot appoint commissioners for five years and employ a fresh tranche of people at the end of those five years. Those people would have no experience, so a turnover is necessary.

849. On the inception of the Life Sentence Review Commissioners five years ago, 25 commissioners were appointed, which has been too many for the amount of work. As a result, our experience has not been intensive enough. However, based on a crude comparison of the available figures, there is likely to be approximately a 15-fold increase in our workload. That is the best calculation that I can make. It is unrealistic to expect 25 commissioners to cope with a multiplier-of-15 uplift in their workload. If we knew the figures of the expected increase in our workload, we could compare those with figures from the Parole Board for England and Wales.

850. Mr McCartney: Your submission lays out a scenario in which a person can go to prison at the age of 25 and remain there for 50 years. Is there a provision for the commissioners to highlight the fact that someone may be in prison because of something that is beyond their control?

851. Mr Smith QC: Do you mean that that should be brought to public’s attention now, or are you referring to individuals that come before us?

852. Mr McCartney: If someone cannot be released because of the lack of a psychologist who may increase the person’s chances of being released, whose responsibility does it become?

853. Mr Smith QC: Globally, that is the responsibility of the criminal justice system and whoever funds the Prison Service. The Prison Service is responsible for how the prisoners are handled when they are in prison. The Probation Board has a role in that, but its main role comes after release in supervising the prisoners. The Wells v the Parole Board case, to which I referred, is being appealed, but if the decision is upheld, the court would make an order that the resources must be made available. That would be terribly wasteful, because it would involve a judicial review, and it would imply that there would be a judicial review every time the resources are not made available. It is a real problem, because the Prison Service may say that it does not have any psychologists to do the work for those people. It is not a question of choosing what to do with the resources. Whatever the available resources, the personnel may not be available. There are all sorts of structural difficulties with the prison psychology service in Northern Ireland. It is very small and qualified people who are already in great demand in England and the Republic often do not want to work for a small service because of the lack of promotion prospects.

854. We cannot do anything about the people to whom the resources are made available but who never manage to cross the hurdle of demonstrating that it is safe to release them. As far as the Life Sentence Review Commissioners are concerned, those people must stay in prison. We have no discretion in such a situation.

855. Mr McCartney: Will an open prison be part of the recommendations in the long term?

856. Mr Smith QC: Yes it will — very much so. That cuts both ways; open prisons are in the interests of the prisoners and of public safety. When prisoners — particularly those serving long sentences — are moved into a more relaxed regime, they have to take much more responsibility, so a better judgement can be made on their capacity to cope with the vicissitudes of life outside the control of a high-security prison. Our difficulty is that prisoners go from a high-security prison into the prisoner assessment unit for a short time, and the prisoners are out before they know it. Even then, the prisoner assessment unit is artificial, despite it being an extremely well-run, well-organised and well-designed facility. Sooner or later, there will have to be an open prison, and that is a very serious issue.

857. The Chairperson: What does the Wells v the Parole Board case state?

858. Mr Smith QC: The decision in the Wells v the Parole Board case means that resources must be deployed to facilitate prisoners to make their way out or, in other words, to prepare themselves to be acceptable for release by the Parole Board for England and Wales. The judges decided that it was not an issue for the European Convention on Human Rights but simply a matter of statutory interpretation, which is what Parliament intended when it passed the legislation that introduced those sentences. The position in England and Wales is that, if the decision is upheld on appeal, resources will have to be provided.

859. The Chairperson: That puts a heavy onus on the authorities to provide the necessary resources to assist prisoners to overcome that hurdle.

860. Mr Smith QC: It certainly used to be the view that a lifer was sentenced to life imprisonment and would only be released by concession. However, IPP sentences are different, because at the end of the tariff part of the sentence, the only reason that a prisoner would be kept inside would be on grounds of public safety, unlike a life-sentence prisoner. If the prisoner is not assisted to address, and redress, the danger that he poses to the public, he will, in effect, be punished beyond the period of the actual punishment element of the sentence.

861. One can talk about a distinction between whether or not it is punishment, but the reality for the prisoners is that the regime does not change when they get to the end of the tariff period. They will be in exactly the same circumstances as they were during the punishment part of the imprisonment.

862. Mr O’Dowd: Given the high percentage of prisoners who suffer from mental-health difficulties, it appears that those sentences will actually target them more stringently than any other section of the prison population. You gave the example of a young person of 25 years of age being sentenced to three years who could actually end up being in jail until he is 75 years of age. Should that person not be in a mental-health institution rather than a penal institution?

863. Mr Smith QC: That is a good point. People with frank mental illnesses can quite often be treated, and there is provision under the mental-health legislation for their detention, which actually has a lower threshold for them to secure their release than if they were convicted prisoners.

864. The Prison Service is concerned about its arrangements for the mental health of prisoners; some of our commissioners are psychiatrists and psychologists, and they have an input into the service’s efforts to make proper provision. The concern and interest displayed by the prison authorities is commendable.

865. The prisoners who cause us the most difficulty are those who do not have what are considered to be mental illnesses. They are people who suffer from borderline personality disorders or personality disorders, and the conventional position of psychiatrists is that those conditions cannot be treated. Those prisoners are helped by enabling them to recognise and cope with the danger signs of their disorder so that they can avoid falling back into offending behaviour, which is why the input of psychologists is so important. That is very resource intensive, because it is difficult to help those prisoners to lead an indefinitely constructive life. It must also be remembered that when the IPP tariff is finished and the prisoner is released, he is liable to be recalled to prison at any time, although the licence may be terminated after 10 years, if he can achieve that, and this must have clearance from the parole commissioners. When the licence is not terminated, if that hypothetical 25-year-old is released at the age of 30, he may be recalled at any time — not just for committing a further crime but for conduct that indicates that the risk he poses has moved from minimal to significant. Therefore, it is a fine dividing line.

866. If a prisoner with a personality disorder is involved in a row when intoxicated, for example, it could trigger their recall. Once that prisoner is recalled, they have to go through the same process again. There is no bonus for having previously achieved their freedom. Therefore, the issue of prisoners with personality disorders will be a serious and indefinite problem.

867. Mr O’Dowd: Prison is supposed to be about rehabilitation as well as punishment. Is it correct to say that prisoners with personality disorders will not be rehabilitated to any degree and that this legislation will simply exacerbate their situation?

868. Mr Smith QC: It would be wrong for me to give the impression that there are no techniques available to address the problems faced by prisoners with personality disorders. Much work has been carried out in America on that issue, which has a much larger population and, therefore, has this problem writ large. There is no doubt that techniques, courses and programmes have been developed. One particular programme has been tried in Northern Ireland, with considerable success. It helps those prisoners, not by curing them but by enabling them to cope.

869. Prisoners sentenced to life are subject to being recalled indefinitely after they have been released. There is a problem in that we do not yet have 10, 20, 25 or 30 years of experience of those prisoners having gone through their courses in prison, being released and then either doing well or doing badly. We simply do not know what the long-term future holds for those prisoners.

870. If prisoners have personality disorders, it makes it difficult for them to cope with the ordinary vicissitudes of life — and prisoners, because they are ex-convicts, are often released into circumstances that have even more vicissitudes than the average person has to face; for example, they often cannot go back to the area in which they have offended because the victim or the victim’s family feel that that would be unacceptable. We tend to try to make allowance for that with the licence conditions that are imposed. However, it makes it difficult for the prisoner, as he may not be able to go back to the area in which his family lives.

871. Mr O’Dowd: In your opinion, does that section of the legislation make society safer?

872. Mr Smith QC: As I understand it, the scheme in England was not a researched-based scheme. In other words, it was not introduced because research by penologists had demonstrated that that was the way to reduce the danger posed by offenders. It was a political reaction to public concern about dangerous crime and the risk of serious harm to the public.

873. I am not aware whether the Northern Ireland scheme has been the product of any research. Therefore, I cannot say whether there is any reason to assume that it will be efficacious. What it will do is remove from the community, for a longer period of time, people who have committed the relevant category of offences. To that extent, arguably, the community will be safer.

874. Mr McFarland: Last week, the Committee heard evidence from representatives from the Probation Board that they are developing a cradle-to-the-grave approach to this issue, in that prisoners will be monitored from sentencing to all the way through their prison term and afterwards. That will clearly be a substantial increase of the board’s remit, and, presumably, its budgets.

875. We have heard from you today that the Life Sentence Review Commissioners will have an influx of people. How much detailed discussion, if any, has there been with the NIO regarding how much this will cost? Has there been an assessment?

876. Mr Smith QC: I am afraid that I am not in a position to answer that. The commissioners have not been centrally involved. That is not a criticism, but our involvement has been limited to our particular role. I mentioned in my submission that we have had some discussions about the rules that we will administer and under which we will work, and so on. There are still some proposals about the legislation that we will be submitting during the consultation period. However, they will not concern the substantive aspects but the procedural issues.

877. I would have hoped that we would have had more information in order to make our plans for the future, but perhaps that information was not available to the people whom we contacted. We have not been, or have not pressed to be, involved in resource discussions, except in instances in which they affect the mechanics of our work.

878. Mr McFarland: It might be worthwhile for the Committee to consider that matter in order to find out. If there is to be a massive increase in the Probation Board’s budget and, indeed, in that of the Life Sentence Review Commissioners, we are not affected, because the matter is not devolved; however, if there is devolution of criminal justice in May 2008, as some people wish —

879. The Chairperson: Or even sooner.

880. Mr McFarland: — we should ensure that it is properly resourced. Clearly, those issues will be expensive, and one would want to be assured that they would be accounted for in any potential budget.

881. Last week, Criminal Justice Inspection Northern Ireland suggested to us that the current number of 25 part-time commissioners should be reduced, but that, given that their workload will increase, they should become full-time professional parole commissioners. What are your thoughts on that idea?

882. Mr Smith QC: It is interesting that the requirements of our job have not been shared with me before this afternoon, and I am interested to hear what you have to say.

883. Mr McFarland: Am I right about that, Chairman?

884. The Chairperson: Yes, that is true, it was —

885. Mr Smith QC: Perhaps it was a spontaneous response to a question from a member of the Committee. This is the first time that I have heard that suggestion, and, as far as I am aware, the members of the Parole Board for England and Wales are part-time. I am unsure of the basis on which such a suggestion would be felt to be appropriate. May I ask what the suggested benefits of such a new arrangement might be?

886. The Chairperson: The idea is that a smaller group of people that consistently deal with similar types of cases would build up a collective knowledge and experience that might be shared and that would help to achieve a greater focus and consistency in the commissioners’ decision-making. That is my understanding of what was suggested. There was no criticism of the commissioners as they are now constituted. That idea was simply floated, and I am not sure that it had been seriously worked out at that time.

887. Mr Smith QC: First, that idea would have resource implications. One would have to pay pensions, and so forth, to people with expectations of permanent appointments, whereas we work under public-service arrangements for organisations in which one would expect to serve two five-year terms. In England, there is no question of an extension to that period, because it is deemed appropriate to refresh the Parole Board by bringing in new people in order to achieve a mix of new and experienced people. That factor seems to have been omitted from the suggestion.

888. Secondly, one of the desirable components of a body such as ours is to have some judges, as the Parole Board for England and Wales does. The Life Sentence Review Commissioners have only one full-time judge and me — a part-time judge. However, we could do with more judges, because some cases are similar, although not identical, to criminal trials, and it is important that people who can take on such a major test are available. Judges would be unable to sit on a full-time body, and that would be a massive loss.

889. As far as consistency is concerned, the Life Sentence Review Commissioners have existed for five years, which is a fair period in which to make an assessment, and we have had no consistency difficulties whatsoever. We have not had a single judicial review that was based on the proposition that the decision by one panel was inconsistent with the approach taken by another panel. We have had no difficulty with consistency, because we adopt the rather obvious practice of meeting regularly to discuss cases. We do not seek to influence a particular panel — we sit in panels of three — as to what the outcome should be. We discuss cases historically, and we learn from them, and that approach has proved to be extremely fruitful.

890. As far as the lawyers are concerned, our procedure is that each panel is chaired by a legally qualified person. That is not required by the rules, but it is the way in which we operate. We do it in that way because there is an endless stream of legal issues. The legal group meets regularly, discusses legal issues and develops policies.

891. I see no added value in what has been suggested. To the contrary, we are not the big end of the resource problem, but what has been suggested would add to the resource pressures.

892. Mr McCausland: I apologise for being late; you might have dealt with this issue already. Under the present regime, for how many days a year or a month does a commissioner sit?

893. Mr Smith QC: That is very difficult to predict. I do not have the figures for that. We are underemployed at present, and we do not sit for many days in a year. We have not been employed for long enough to provide the level of experience that would be desirable. We could have done with 15 commissioners just as easily. That would have increased the workload by about 40% and probably would have brought us up to a reasonable minimum.

894. Mr McCausland: I hasten to add that I have no particular interest in this, but, out of curiosity, what daily or hourly payment do commissioners receive?

895. Mr Smith QC: It is about £400 for a full day. We are paid pro rata, so the sum is divided by eight to get an hourly rate.

896. Mr McCausland: You drew a distinction between someone with mental-health problems and someone with a personality disorder. What conditions fall into the category of personality disorders? For example, does it include schizophrenia?

897. Mr Smith QC: No, schizophrenia is a mental illness.

898. Mr McCausland: What are personality disorders?

899. Mr Smith QC: A personality disorder is described by its symptoms rather than being a description of what is wrong with a person’s brain, as it were. A person with a personality disorder has never matured or developed skills for coping with the vicissitudes of life. They tend to be products of dysfunctional families where there is alcoholism and, possibly, violence. They solve their problems in the same way in which their parents did — by getting drunk or lashing out. The personality disorder manifests itself in the person’s teens or late teens, when he or she commits a criminal offence, which are often serious.

900. Mr McCausland: Is it correct to say that people with personality disorders are treated by undertaking programmes rather than by medication?

901. Mr Smith QC: Programmes are the only known way of ameliorating the condition.

902. The Chairperson: I have one last question about resources. Apart from the commissioners, other staff members service your organisation. What is the current staff complement? What increase in staffing will be required to assist commissioners in the future?

903. Mr Smith QC: There are about six staff members. However, the situation is complicated, because those staff also comprise the secretariat for the confusingly named Sentence Review Commissioners, who deal with prisoners under the Northern Ireland (Sentences) Act 1998. That is a shrinking component of the work, so they are mainly engaged in work for the Life Sentence Review Commissioners.

904. If there were a 15-fold increase in our workload — and the figures for that supposition are calculated on a crude basis — I would not suggest multiplying staff numbers by 15. However, a substantial increase in staff numbers would be necessary, and there would not be suitable accommodation to deal with the level of demand that has been indicated to us.

905. Although hearings are usually held at Maghaberry, in future commissioners will do much of their work in an office because many hearings will be done on paper, instead of orally, as is the current practice. The commissioners will need somewhere to process their papers.

906. The Chairperson: Mr Smith, thank you for your interesting and stimulating submission, and for your discussion with the Committee. If any other matters arise after today’s discussion, may we ask you for your opinion?

907. Mr Smith QC: Yes, of course.

908. The Chairperson: Thank you very much.

909. Officials from the Department of the Environment will now brief the Committee on the road traffic offences that are provided for in the draft Order. I welcome Mr John McMullan and Mr Harry Green, and I thank them for their written submission, which is included in members’ folders.

910. Committee members have read and are very pleased with your memorandum. Mr McMullan, I invite you to explain the road traffic offences in the draft Order.

911. Mr John McMullan (Department of the Environment): Thank you for the opportunity to address the Committee on the road traffic measures in the draft Order. I shall briefly explain the road traffic offences in part 4 of the draft Order, and then we shall answer any questions that members may wish to ask.

912. We always work closely with the PSNI in developing road traffic law, and we had hoped to have a PSNI representative with us but, unfortunately, that person was unable to attend. If we cannot answer questions on police operational matters, we will quickly come back to the Committee with answers.

913. The Chairperson: Thank you.

914. Mr McMullan: In the overall context of the draft Criminal Justice (Northern Ireland) Order 2007, the inclusion of road traffic offences may seem odd, and may not seem to fit in with the other offences. At the start of this year, we worked on a road traffic Order that was proceeding through Westminster, and were tracking a piece of GB legislation, which is now the Road Safety Act 2006. Various amendments were made to that Bill at a late stage in its progression, which wrong-footed us because we were unable to carry out consultation and still meet the Westminster timetable. It transpired that the amendments concerned matters that were reserved under the Northern Ireland Act 1998, such as offences and penalties.

915. After negotiation, the NIO agreed to incorporate our road traffic Order in the criminal justice Order that they were developing. Therefore, the road traffic offences reflect the GB Road Safety Act 2006, and maintain parity with GB law. That is not the reason for incorporating them — they are good road safety measures for Northern Ireland.

916. I shall briefly go through the offences because they are not immediately obvious due to their being tied into other amendments. Article 53 is the first article in Part 4 of the draft Order, which creates the offence of causing death, or grievous bodily injury, by careless or inconsiderate driving.

917. At present, there is no such offence, and causing a death would be dealt with as a careless driving offence, with a maximum penalty of £5,000, penalty points or disqualification of a licence.

918. By comparison, causing death by dangerous driving or careless driving when under the influence of drink or drugs has a custodial maximum penalty of 14 years. There is, therefore, disparity between the causing-death offences. The objective behind article 53 of the Order is to close that gap. It recognises that there are various degrees of seriousness in respect of careless driving. For that reason, there is the option of dealing with the offence under summary conviction in the magistrate’s court or on indictment. If the offence is dealt with under summary conviction, the maximum penalty is six months’ imprisonment and/or a maximum fine of £5,000. The maximum penalty for offences dealt with on indictment is five years’ imprisonment and an unlimited fine.

919. Article 54 deals with a similar type of offence. It creates the offence of causing death or grievous bodily injury by driving when unlicensed, disqualified or uninsured. The rationale behind that offence is that the death was caused by a driver who should not have been on the road. At present, if such a situation arises and the driver was driving properly, he will be charged only with driving when unlicensed, uninsured or disqualified. No account is taken of the death being caused by the driver’s having the vehicle on the road unlawfully. The offence in article 54 addresses that, and it can be tried under summary conviction or on indictment. Under summary conviction, the maximum penalty is six months’ imprisonment and/or a maximum fine of £5,000, and, on indictment, the maximum penalty is two years’ imprisonment.

920. Article 55 is an enabling provision that allows the Department to make regulations in respect of speed assessment, equipment and detection devices. Those are devices that detect or interfere with safety cameras. At the worst end of the scale are jammers, which prevent the operation of speed cameras. Details of the devices that will be prohibited will be worked out in the legislation.

921. The provisions are not intended to prohibit global positioning systems (GPS) that contain information on fixed camera sites. It is the policy of the police and the Department that those sites are made visible and known. The devices that detect mobile, laser or radar equipment will be prohibited, because there must be some deterrent. Any driver who uses such a device could speed with impunity and slow down for the cameras, and, in other cases, be a danger to themselves and others.

922. The Chairperson: May I stop you there, Mr McMullan? I understand that jamming devices that prevent a person from being detected should be prohibited. Leaving aside the well signposted and displayed static cameras, surely any device that shows the whereabouts of a speed trap along a stretch of road will deter drivers from exceeding the speed limit and help in maintaining some sort of discipline.

923. Mr Weir: I am sorry to interrupt, but the reverse is also true. A device that shows that there are no speed cameras on a stretch of road will create a situation in which a driver thinks that he or she can put their foot to the accelerator and exceed the speed limit, because they know that they will not be detected.

924. The Chairperson: That could encourage a person to speed; I understand that. However, if a person is aware that there are laser-type devices in the vicinity, he or she would be encouraged to obey the speed limit. I may be wrong, but I am testing the water.

925. Mr Harry Green (Department of the Environment): There are indications that people become used to the signs that warn of speed cameras, and they tend to see them as pieces of street furniture, to which they do not pay any attention. The main reason for the introduction of article 55 is that if people rely on the speed detection equipment that is fitted to their car, they go into relaxed mode and drive as they wish. They do not think of prevailing circumstances, such as children getting out of school or the build-up of traffic near a shopping centre.

926. If we send out the message that having a device fitted to the front of a car is not a way around the law, the number of speed-related crashes may be reduced.

927. The Chairperson: It is up to colleagues to consider that. There is a certain value in making people aware of what is present in the driving environment.

928. Perhaps the witnesses could continue, and members will raise any additional points when they have finished.

929. Mr McMullan: Article 56 brings Northern Ireland law into line with that of GB. It increases the fine that is imposed when a motorist fails to stop when required to do so by a constable. The increase is from a maximum of £1,000 to £5,000. Generally, we try to keep penalties for offences in Northern Ireland the same as for those in GB. In the future, there may be mutual recognition of offences and penalties. It would be much easier if we all worked to the same legislative base.

930. Article 57 relates to an old offence, contained in the Offences against the Person Act 1861 and is sometimes referred to as the offence of “furious driving”. It is perhaps the earliest recognition of what we now call “road rage”. It is still used for offences that happen on private land; but, at present, it sits outside the body of road traffic law. The police cannot attach penalty points or disqualification to such an offence. Article 57 of the draft Order will allow that to happen: for such an offence, there can be discretionary disqualification and a range of from three to nine penalty points.

931. Article 58 relates to evidential roadside testing. It requires a person to provide a specimen of breath that can be used in evidence in court. That entailed a major amendment to GB law; prior to the amendment, such a requirement could be made only at a police station. However, police in Northern Ireland have had that requirement for many years; the provision merely revamps our legislation and does nothing new other than to clarify associated powers.

932. Article 59 is an interesting provision, which relates to alcohol ignition interlocks. Such a device may be fitted to a vehicle to prevent it from starting. A driver blows into the device, and the vehicle will start only if the breath registered is lower in alcohol content than the prescribed limit. The article gives the court an option when sentencing: an offender may decide to enter into an alcohol ignition interlock programme at his or her own expense. That is entirely discretionary; and it is offered to repeat offenders — persons who have committed a second drink-driving offence in a period of 10 years. The disqualification period must be not less than two years. Under the programme, the offender must comply with certain conditions in respect of education and counselling. However, the centrepiece of the programme is that the alcohol ignition interlock is fitted to any vehicle that he or she can drive. It will be an offence to interfere with that device, or for someone else to blow into it to allow the offender to drive.

933. Following an initial period of disqualification, the offender can avail of the programme. Compliance with that can result in a reduction in the disqualification period of up to 12 months, but of not more than half of the disqualification period. For example, an offender who is disqualified for two years may serve a disqualification period for the first year, and for the second may drive a car fitted with an interlock device. Failure to comply with the programme, or the issue by the programme provider of a certificate that the offender had failed to fully participate, will result in restoration of the full period of disqualification.

934. That represents an innovative approach, although it has been used successfully in other countries. For that reason, article 60 allows the scheme to operate on an experimental basis until 2012. At that point, the Department may extend the experimental period if it wishes, place it on a permanent footing, or, if the programme is not working properly, scrap it altogether.

935. Article 61 further defines careless driving. At the moment, the general definition is:

“driving without due care and attention, or without reasonable consideration for other persons”.

936. The new legislation fleshes out the meaning of those two phrases. It further defines “without due care and attention” as a person who drives in a way that is:

“below what would be expected of a competent and careful driver.”

937. To drive without “reasonable consideration for other persons” now applies:

“only if those persons are inconvenienced by his driving.”

938. That definition will apply to the offence of causing death or injury by careless driving, or causing death by careless driving while under the influence of drink or drugs, and to the basic careless driving offence.

939. Article 62 is an extension of the offence under article 14 of the Road Traffic (Northern Ireland) Order 1996, relating to causing death by careless driving while “under influence of drink or drugs”. The police currently have powers to take a blood sample from someone who is incapable of giving consent. The person is subsequently asked for his or her consent to subject that sample to a laboratory test. A refusal constitutes an offence, but it could also be an avoidance of the more substantive offence of causing death by careless driving due to drink or drugs. Article 62 allows the extension to the article 14 offence to charge the person with:

“causing death or grievous bodily injury by careless driving when under influence of drink or drugs”.

940. Article 63 provides alternative verdicts for the charge of manslaughter. Manslaughter is used infrequently for causing death by driving, and it is thought that that is because there are no express alternative verdicts. The new legislation sets out that if manslaughter is not proven, other verdicts are:

“causing death or grievous bodily injury by dangerous driving … dangerous driving”

941. — and —

“causing death or grievous bodily injury by careless driving when under influence of drink or drugs”.

942. It also sets out the offence of “furious driving”.

943. Article 64 deals with:

“Seizure of vehicles used in manner causing alarm, distress or annoyance”

944. The new provision that allows police to seize vehicles will be particularly useful in dealing with quad bikes, mini motos and scooters that cause nuisance to, and annoy, people. A constable must warn the person that he or she may seize the vehicle if the offending behaviour continues. The police have the power to stop, seize and remove the vehicle.

945. Article 65 sets out the regulations on the seizure of vehicles, namely the removal, retention, release or disposal of vehicles and any fees accrued.

946. The Chairperson: Thank you very much for explaining the provisions in such detail. Is the alcohol ignition interlock programme based on an ongoing programme in Britain?

947. Mr Green: The Department for Transport has been running a pilot programme over a two-year period in Great Britain, primarily in Birmingham and Manchester. People volunteered to have the devices fitted to their cars. They paid an initial fee to have them fitted and a monthly cost thereafter.

948. The pilot programme has concluded, but the report on its success, or otherwise, has not yet been published. We expect to receive that at the end of January or early February 2008. I do not have any inkling as to what the conclusions will be. However, those findings will form the basis of decisions that will have to be taken on whether such a scheme will be placed on a statutory footing and made available throughout Great Britain. That was a long answer to your question: put simply, the programme is not offered at the moment in Great Britain.

949. Mr McCartney: What costs are involved?

950. Mr Green: If the scheme is introduced in Northern Ireland, the cost will have to be determined locally. However, the interlocks will not represent an easy option. The initial installation will cost around £90, with a monthly charge thereafter. The cost will be significant, but the scheme is aimed at problem drinkers who have difficulty in kicking the habit. We are trying to encourage them to be able to drive without taking any alcohol. The devices will be set at a low level of around 9 micrograms of alcohol per 100 millilitres of breath, which is much lower than the current limit. There are mixed reports from around the world. Several countries introduced the scheme in pilot form some time ago, and, where it has been successful, it has been made permanent. Other countries have experimented with the programme but have decided that it had not been such a success. However, we feel that we must at least have an experimental period, examine the results, and determine whether the programme fits the bill in Northern Ireland.

951. Mr McCausland: I want to return to the subject of quad bikes. Under the legislation, a person has to be warned first about their misuse of such a vehicle. The power to seize it is used if they persist in that misuse. However, the legislation does not address a situation whereby a person misbehaves on a quad bike and is warned by the police, only to repeat that behaviour two hours later.

952. Mr McMullan: I believe that it does. I can offer a brief explanation for that. Generally, the police have to give a warning; however, the legislation also provides for a situation in which it is impractical to give a warning, and sets out various circumstances in which a warning would not be necessary; for example, when a previous warning has been given and has been indicated to the next shift. There is enough flexibility in the legislation.

953. Mr McCausland: If a warning were given on the Monday of one week, and the behaviour was repeated the following Monday, would the previous warning suffice?

954. Mr McMullan: I believe so.

955. Mr McCausland: That is fine.

956. The new article 53 offence of causing death or grievous bodily injury by careless driving will be triable either on indictment or summarily, and will carry a maximum of five years imprisonment on indictment. What is the punishment for a summary conviction?

957. Mr McMullan: The punishment for a summary conviction is imprisonment for six months and/or a maximum fine of up to £5,000. On indictment, the sentence is imprisonment for up to five years and an unlimited fine.

958. Mr McCausland: I have no legal background whatsoever. Why do we even have summary offences? If a life has been taken, or someone has been seriously injured, surely the sentence should be automatic?

959. Mr McMullan: That offence is essentially one of careless driving, which is different to dangerous driving. That could arise as a result of a momentary lapse. I know that the consequences are extremely serious, but to cause the death of a person can almost be penalty enough for some individuals, who may have had a lifelong clean driving record until such an incident occurred. That is why two options exist to allow us to examine the various degrees of seriousness. Offences committed by a perpetually careless driver would be viewed more seriously.

960. Mr McCausland: What is the significance of furious driving, as detailed under the proposed article 57? You said that that was an old offence.

961. Mr McMullan: Yes. Most of our road traffic offences relate to offences committed on a road or in a public place, and do not extend to private land. Furious driving is an offence committed on private land. It currently sits outside the body of road traffic law, however, and does not incur penalty points or disqualification. Article 57 is designed to bring the offence of furious driving into the main body of law.

962. Mr McCausland: Does that include car parks?

963. Mr McMullan: The Belfast Harbour estate is a good example of private land in Northern Ireland.

964. Mr McFarland: Presumably, there is nothing to stop someone from getting their son to lean over and blow into the alcohol ignition interlock. If the child were under 10, they would not be committing a criminal offence. Has any thought been given to installing a camera to confirm that the driver has blown into the device? A camera would be of benefit if there were any doubt about who blew into the device.

965. Mr Green: I am reliably informed that, in the experiment in Great Britain, the person initially blew into the device and, every few minutes, there is an audible warning for the person to blow into the device again. The recommended timeframe is that the person must blow every five minutes, and it is assumed that they will pull into a safe place to do that. The device has the capability to recognise one’s breath, similar to a fingerprint, and will recognise whether each breath sample is the same as the initial sample. Therefore, a sober passenger cannot lean over and breathe into it.

966. Mr McFarland: I have a slightly broader question. It has always struck me that many, if not most, of our most serious fatal accidents take place in the early hours of the morning and involve young men who are full of drink and drugs. They either crash into someone else or into trees. Are we any nearer to seeking and finding a solution to that problem? If some way could be found of interfering with that problem, our road accident statistics would be dramatically reduced.

967. The provisions that have been mentioned today are great, and some of them are groundbreaking. Provisions to deal with joyriders who are wrecking neighbourhoods on quad bikes represent a major move forward. However, the other problem is that of how to prevent our young people, full of drink and drugs, from killing themselves in the early hours of the morning.

968. Mr Green: That problem is not unique to Northern Ireland, Ireland as a whole, or the UK. That is a worldwide problem. When young — predominantly male — drivers are involved in single-vehicle collisions in the early hours of the morning, it is often a combination of speed, a few drinks, a few drugs, fatigue and the fact that their tyres are not in the best condition. It is no comfort that we share that problem with the rest of the world; we must do something about it, and we intend to do so.

969. Over the past few months, members have probably heard the Minister of the Environment refer to the review of the road safety strategy. That review is well under way, and the Department will consider the problem of young male drivers. We have an overall target for reducing deaths and serious injuries, and another one for reducing child deaths and serious injuries. I am not making any promises, but it has been suggested that we should have a target for reducing the numbers of deaths and serious injuries among young people aged 17 to 24. We have not dismissed that suggestion, and it will be considered in the context of the review of the road safety strategy.

970. Graduated licensing will also be considered. Consideration will be given to the question of whether to impose restrictions on young people in the form of a curfew that would only allow them to drive until 11.00 pm. It is a wide-ranging strategy, and all of those measures will be considered. No decisions have yet been taken, but the Department is mindful of the incidences of young people being fatally injured in the early hours of the morning.

971. Mr Weir: You said that most of the provisions replicate measures from the GB Road Safety Act 2006. Are any of the articles in the draft Order unique to Northern Ireland?

972. Mr McMullan: No; the draft Order would provide parity with the GB Act. One or two of the articles are taken from a police reform Act in GB, but the majority come from the Road Safety Act 2006.

973. Mr Weir: The measures provide parity with GB, apart from one or two that are drawn from a different source?

974. Mr McMullan: Yes, but those still provide parity with GB.

975. The Chairperson: If there are no further questions, I thank Mr McMullan and Mr Green. You have been very helpful.

9 January 2008

Members present for all or part of the proceedings:
Mr Alban Maginness (Chairperson)
Mr Alex Attwood
Dr Stephen Farry
Mr Nelson McCausland
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr Peter Weir

Witnesses:

976. The Chairperson (Mr A Maginness): I advise members that there are four sets of evidence to get through today. We will adhere as closely as possible to a maximum of 30 minutes for each set of witnesses, including questions and answers, as there is other business to deal with after the evidence sessions.

977. I welcome the representatives from the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO), Ms Olwen Lyner and Mr Pat Conway. We note that NIACRO has already provided the Committee with a written submission: please take that as read, as we are pressed for time, and I do not want to restrict the time available for questions and answers. Please make your introductory remarks and any salient points in relation to the draft Criminal Justice (Northern Ireland) Order 2007.

978. Ms Olwen Lyner (NIACRO): I thank the Committee for the opportunity to give evidence this afternoon. As some members will know, NIACRO is a criminal justice voluntary organisation. It provides a range of services and programmes for young people and adults who have offended, as well as ex-prisoners, and supports the families of those who are in prison. NIACRO has an annual budget of approximately £3·5 million and around 80 members of staff. Although the services that we provide are very important, it is also essential that the lessons that we learn from our service delivery are shared with bodies such as this Committee at moments such as this, when legislation is being considered. Therefore, the policy comment aspect of our work is important.

979. To set a background context, we believe that there should be opportunities for offenders to be reintegrated back into the community. The overriding purpose of our work relates to crime reduction, reduction in victimisation and crime prevention. That is an important aspect for the Committee to understand.

980. We have answered the questions that were posed to us regarding what we support, particularly in the legislation, and we have outlined what causes us concern. We do have some concerns about the legislation. As indeterminate and extended sentences are likely to be introduced, any organisation with its roots in rehabilitation will be concerned unless we are convinced that there are adequate protections for those in the system. We will monitor that over time to ascertain how it proceeds.

981. Obviously, we are aware that extensive work has been carried out to ensure that there is not a transposition into our situation of legislation that has not been helpful in England and Wales. However, we are concerned that people could be held in prison for offences that they may commit, as opposed to those that they have committed. That is difficult for us to accept.

982. Furthermore, all those players who will be involved in the new system may well be forced — certainly through media scrutiny — to become more risk averse. We know that working with offenders and moving people towards positive resettlement and reintegration is a risk business, and it is important to recognise that some levels of risks will have to be borne by the system as this process proceeds. We are happy to take questions.

983. The Chairperson: Thank you. Your written submission states that:

“NIACRO is very concerned we have lost three cornerstones that helped in the management of offenders”.

984. One of the “cornerstones” highlighted is the removal of any form of remission. It is the understanding of this Committee that remission continues, but in a different form. In other words, a person is released from prison but under certain conditions. Are you contending that remission is effectively abolished? What is the point that you are making in your written submission regarding that?

985. Ms Lyner: Regarding the notion of remission, obviously automatic 50% remission is being lost, which I do not think is a particular problem. The notion is that remission can be worked with, to motivate prisoners by pointing out that their involvement will result in a reduction in the length of time that they will be in custody. However, remission will no longer be an automatic right; therefore, good behaviour will not necessarily be encouraged — although it should — and there will be a process to go through.

986. The Chairperson: Right. Therefore, in that sense, is it your view that there is no remission?

987. Ms Lyner: Yes. I do not believe that the term is there.

988. The Chairperson: Your written submission also refers to youth justice custody. It states that:

“NIACRO welcome the creation of powers to allow children age 17 to be accommodated in the Juvenile Justice Centre but would want this strengthened to a presumption that all under 18s — children should be there unless there is compelling evidence that it is an unsuitable placement.”

989. Will you like to comment further on that?

990. Ms Lyner: It has always been our contention that any one under the age of 18 — any one who is considered to be a child — should not be in the prison system. Some years ago, when there were consultations on the size of the provision that is now located in Bangor, we were concerned that the plans were not taking into account the numbers of people who might come through that system.

991. The latest inspections of Hydebank suggest that some people who are under 18 are being held there. It is our view that the presumption should be that all the offenders who are under 18 should be located there, unless a compelling reason is evidenced as to why they should not be.

992. The Chairperson: Under the draft Order there is no presumption of that?

993. Ms Lyner: No, there is no presumption that offenders under the age of 18 should not be in the prison system. NIACRO does not think that the draft Order is strong enough on that.

994. The Chairperson: If I am misrepresenting what the Northern Ireland Office has said about this I stand to be corrected, but my understanding is that the NIO has said that the criminal justice review did not say that offenders under the age of 18 should not be dealt with by the prison system. Therefore, the NIO is relying on that.

995. Ms Lyner: Since the criminal justice review was published, a number of measures have been introduced that have changed a range of things. For instance, antisocial behaviour orders were not mentioned in the criminal justice review. It is still our contention that people under 18 should be dealt with in the juvenile estate, and that adults should be dealt with in the prison system. It is a matter of ensuring that the legislation is framed so that that presumption exists.

996. The Chairperson: The criminal justice inspectorate agrees with you on that issue.

997. Mr Weir: I have a brief question.

998. The Chairperson: Is it a supplementary question to that particular point, or is it a fresh point?

999. Mr Weir: It is a supplementary question to the first point about the three cornerstones, rather than the second point. I understand the explanation that you have given in response to the Chairman, but can you expand on the issue of the requirement for consent?

1000. Mr Conway: Our main point is on the issue of voluntarism. If we can engage with ex-offenders and ex-prisoners and get them to see the value of an engagement to address their behaviour, that would be more successful in reducing their offending behaviour. Under the proposed legislation, the element of voluntarism could be reduced.

1001. Mr Weir: Thank you, I was unclear on what you meant by that.

1002. Ms Ní Chuilín: I have a completely different point to make. Olwen and Pat, you are very welcome to the Committee. Can you elaborate about the presumption of the use of community disposals and explain and expand on NIACRO’s views on professionally managed and community sentencing? Where possible, can you talk about successful outcomes?

1003. Ms Lyner: The presumption of the use of community disposals is also about not wanting to see an increase in the prison population as a consequence of the legislation. Even now, there are a number of people who have ended up in the prison system whose likely chance of a more positive re-integration outcome might have been every bit as well served if they had had a community sentence. One of the key concerns is that when someone is removed from society in order to protect the public, that person suffers a loss of connection with family, accommodation and benefits. Work must be done to ensure that these fall into place again when the person is released. The system does not work in a joined-up fashion to make that happen.

1004. There are several reasons for the use of community disposal. It is not always logical why some people get a prison sentence and others who have committed a similar offence get a community disposal, but the outcome is that those who go to prison are more likely to reoffend. It seems to NIACRO that community disposals work, they are cheaper, and they do not require the effort for offenders to reconnect all of the threads of their lives that need to be put in place if they have been taken out of the community for a period.

1005. Ms Ní Chuilín: Are there other areas where community disposals are working now, other than in different parts of the North? Do you have any examples of community disposals from England, Scotland, Wales or the South, even anecdotal examples?

1006. Mr Conway: It is generally regarded that any increase in lay engagement — that is any engagement beyond the criminal justice system with respect to resettling people coming out of prison or reintegrating people who have been through the court system for criminal or offending behaviour — is to be prized and sought after. That ranges from engagement with non-criminal justice Departments, through to community organisations and voluntary organisations, and it involves bringing to bear all the elements that are involved. We have broken it down into the six elements that are required, and Olwen referred to different areas: housing, social, community, financial, training and employment. Thus, a format exists, and we work to that format.

1007. We recognise, and are on record as saying, that we do not have the complete answer to this issue. The criminal justice system cannot solve it by itself. It needs to engage other Ministries, other Departments, and, very importantly, other community elements to assist in resettlement. Without those elements, it will not happen. Our fear is that, unless that engagement occurs, there will be an increase in the prison population — and plans seem to be afoot to allow that to happen. The criminal justice system recognises that there needs to be resettlement, but, in our view, the emphasis seems to be on the “front end” of the criminal justice system — loading people through the courts and the prison systems and all the rest of it. The resettlement and reintegrated elements simply are not there. We would argue for, not necessarily extra funding, but a redistribution of current resources to what is called the “back end” — which I think someone referred to previously as “down river”. I am sure that everyone argues for extra resources, and we are no different. However, before we make that argument, let us look at where resources are currently applied to see if there is any way that we can shift them within the system.

1008. Mr McFarland: I thank the witnesses for their presentation.

1009. I would like a factual steer on video links, which are mentioned on page 3 of your presentation. As I understand it, an individual’s first appearance in court must be in person, and they are then put on remand — and we can argue about the efficiency of the courts system in continually remanding people. This measure would mean that it would not be necessary to wheel people backwards and forwards to court. However, I am surprised to hear that people can receive their final sentence by video link. I understood that they had to turn up in person for the first and last appearances. Is that not correct?

1010. Ms Lyner: As we understand it — and we could be wrong — one of the proposals in the legislation is that they do not have to turn up in court; instead they would be sentenced by video link. We do not believe that the new proposal —

1011. Mr McFarland: Is that current practice?

1012. Ms Lyner: It is not current practice; it would become the practice if the proposal in the legislation were followed through.

1013. The Chairperson: It could happen, but it might not necessarily happen. Is that your point? It is not mandatory.

1014. Ms Lyner: Whether it could or it could not, we do not believe that it should.

1015. The Chairperson: Ever?

1016. Ms Lyner: No — a person should be present in court for sentencing.

1017. Mr McFarland: Is it correct that, under the current system, a person must appear in court for sentencing? I am wondering why there would be a departure from that practice.

1018. Ms Ní Chuilín: Efficiency savings.

1019. The Chairperson: I think that the legislation would allow for sentencing by video link, but I do not think that the legislation proposes that it should happen in all circumstances. The normal procedure is for a prisoner to be sentenced in court in person.

1020. Dr Farry: In the conclusion to the presentation, a very strong statement is made, namely that there is a danger that people may be kept in prison because of what they might do as opposed to what they have actually done. I want to tease that issue out a little further because it has very worrying implications.

1021. At the moment, people go to prison for what they do, primarily because they are judged to be a risk to society, and decisions on whether or not they are released depend, to an extent, on an assessment of that ongoing risk. In a sense, such decisions are already linked to what they might do. Are we talking about a single spectrum whereby the balance is perhaps shifting more towards the burden of proof and people having to prove that they would not be a risk if released, as opposed to a fundamental change in the system whereby people are effectively kept in prison for crimes that, hypothetically, they could commit, but which they have not yet actually committed?

1022. Ms Lyner: The member is correct: it is extremely worrying. There is potential for people to be kept in prison for crimes that they might commit, because they cannot necessarily meet the requirement to convince people that their risk is reduced. There will be a great burden of responsibility on the folk who are charged with the responsibility for carrying out those risk assessments. Public outcry will produce an even greater burden should anything go wrong. Therefore, although the Northern Ireland Association for the Care and Rehabilitation of Offenders fully accepts that there are a dangerous few, once the notion has been accepted, the matter is about risk assessment, rather than completed sentences, that will enter us into different and new territory. There are risks. That is a concern that must be monitored.

1023. Dr Farry: That is the point that I am trying to tease out. To what extent does that new territory represent a fundamental change to the entire ethos of the criminal justice system and human rights, as opposed to a much more stringent approach to the current system where the balance, in which the burden is on the detainee to prove that his or her risk is reduced, has been changed considerably and fundamentally? Does it represent a major shift from what exists at present, or is it a move into totally new territory?

1024. Ms Lyner: It is a move into new territory with regard to people’s being released from custody. There is no doubt that, in Northern Ireland, a system exists in which the risk of offenders who are already in the community is managed. Inspection reports tell us that that process is well managed and documented. Therefore, it is not the case that we have no experience of risk management. However, deciding whether to release someone is completely new territory, which will depend on what sort of behaviour the person is exhibiting in prison, rather than time served. The association accepts that there are, undoubtedly, a few offenders who pose a high risk to society. However, it must be ensured that the instruments that are used for risk assessments are sensitive enough to identify the few rather than, in risk-aversion terms, end up being a blunt instrument for the many.

1025. Dr Farry: Therefore, for prisoners who are serving shorter terms, the potential difficulties and burden to establish that they are no longer a risk are much greater because the opportunities to prove the absence of risk are much less within a shorter timeframe. I suppose that the longer the process continues, that degree of risk will diminish and the opportunities to assess it will increase simply because the resources are more readily available and the opportunities to use them become greater.

1026. Ms Lyner: The association views that slightly differently. The member is absolutely correct that it would be more difficult for short-term prisoners to avail of the programmes that might help them to demonstrate their motivation to change because the management of the prison system does not make it that easy to bend programmes to suit people’s sentences in order to provide them more quickly. However, I do not believe that offenders who have served longer sentences for what one must assume are more serious offences will necessarily find it easier to provide the proof that is required. We must wait and see how that develops.

1027. Dr Farry: It is not so much a question of proof. If there is a question of limited resources being made available, the longer that someone is in prison, the greater the chances that he or she will be able to take up different courses and access different agencies in order to discuss his or her situation, whereas those who serve shorter terms will have less access to those resources, which are fixed and limited. Those prisoners will be caught in trap.

1028. Ms Lyner: I am aware that in the evidence that the Committee has received much has been said about the need for resources. There are a lot of resources in the criminal justice system, particularly at the front end of the system.

1029. There is a lot of money in detecting and prosecuting people; there is a lot in sentencing and holding; and very little, less than 10%, is focussed on engaging with people’s behaviour. That needs to be seriously redressed. We have high costs at the front end.

1030. Obviously, we want to be sure that whatever budget that comes here is of sufficient size to do the job. We also need to be sure that we spend money wisely. I take the point about efficiency saving, but I think we could bear some savings. Some efficiency savings could be made at the front end of the system.

1031. Mr Conway: I will add a couple of points and to follow up what Olwen has said. Take the Prison Service as an example. The functions of prisons are: primarily to contain, secondly to care and thirdly to resettle. NIACRO has tried to find out what resources are applied to each of those three functions. Anecdotally, we know that, when things go wrong in a prison, all the attention reverts to containment and focus on education, health and other aspects is lost.

1032. Another point is that the application of current programmes is under pressure. Things that should be dealt with are not being dealt with. One of the points made in the latest edition of ‘NIACRO News’ relates to sectarianism and hate crime. There are no programmes, in either the prison or the probation system, that challenge people’s attitudes and behaviours with respect to sectarian actions or hate crimes. That is one example of where a huge gap exists.

1033. Mr O’Dowd: Some of my points have been covered by answers to previous questions. However, prisons are for detention, as the witness has rightly said, but also for rehabilitation. The section of the draft Order that we are discussing relates to determining sentences. How does that assist in the rehabilitation of a prisoner? Perhaps you think it does not relate to it.

1034. Ms Lyner: That is a good question. It is difficult for prisoners whose sentences are indeterminate. With respect to how the Order will work in practice, one element that must be worked on is the need to make clear to the prisoner which consistently changed behaviours will make a difference to the way in which he will be treated the next time he comes before the board.

1035. In our view, there is little difference between a life sentence and an indeterminate sentence. Experience shows that it is difficult to deal with life-sentence prisoners, especially in Northern Ireland where no structured approach to that situation has been adopted. That will be a real test. It is not easy to deal with a prisoner whose sentence is indeterminate, or one who has received a life sentence, unless one is clear as to what the goals are throughout the process. Explaining that to prisoners, and motivating them to move on, requires a talent for dealing with and engaging with them. Otherwise, an increased prison population will result.

1036. NIACRO is not convinced that we will face an increase of the order suggested by some of the websites.

1037. The Chairperson: What order of increase do you foresee?

1038. Ms Lyner: Predicting the increase is not an exact science. NIACRO does not want to see an increase greater than 120 to 200 prisoners. Otherwise, we should question what the Prison Service is at. Is it successfully reintegrating or resettling people, if the numbers are just turning around again? If that is what is predicted, the system is not doing well. Under the public sector agreement (PSA) targets of the NIO, re-offending should be reduced. If it predicts significant increases, it is failing to meet its PSA targets. It needs to send the public consistent messages.

1039. The Chairperson: With respect to increased numbers, estimates of the net impact vary to between an additional 60 prisoners to an additional 120 or so, by 2020. That estimate comes from the Prison Service. Similar estimates were given us by the NIO and the Northern Ireland Probation Board. However, Mr Peter Smith QC took a more reserved position on the increase. He was not quite so confident that the numbers would be as presented to the Committee. What is your view? Perhaps you cannot answer.

1040. Ms Lyner: It is not an exact science. We do not engage in predicting the numbers.

1041. Mr Conway: We have severe reservations about such predictions. How can you predict what will happen in 2020? We know that the prison population by that time is predicted at 2,500. Where does that figure come from?

1042. Where does that figure come from? Plans are being made to expand the prison system. NIACRO’s argument is that it could equally be predicted that those figures could be driven down if the will was there and there was an effective resettlement strategy in place. If there was a resettlement strategy that actually worked, then the logical conclusion is that there would be fewer people in prison.

1043. We are bemused about where the figures are coming from. If those figures are being imported from GB, with regard to good practice, it has its own difficulties. We are in contact with people who are involved in resettlement systems in GB. They are facing the same problems — perhaps, worse problems — than we in Northern Ireland. Despite that, we are trying to import ideologies from GB and to predict on prison places. We are at a loss —

1044. The Chairperson: Although, there are some material differences between the draft Criminal Justice (Northern Ireland) Order 2007 and similar legislation for England and Wales.

1045. Mr Attwood: I, like Dr Farry, picked up on Mr Conway’s conclusion that is, in one way, a stark warning to the Ad Hoc Committee. He has said that he is concerned that the legislation will evolve into a massively expensive crime-prevention measure. The Ad Hoc Committee has not, previously, heard any evidence that indicates that level of warning. Peter Smith QC was the only person who may have implied some doubts about what was happening. Speaking in a personal capacity, he said that the regime was introduced in Britain for political reasons and that there was no evidence base to support its introduction.

1046. The Committee should take on board, fully, what has been said because it is contrary to the prevailing view of the Prison Service, the Probation Service and to that of others — such as the CJI — who have given evidence to the Committee. A lot of people are concerned that the resources will not follow the new regime and that the result will be a system that will be used for purposes for which it was not intended to be used. In the event that adequate resources follow the new regime — and mindful of what you said about the back end and the front end — is that sort of regime, in principle, something with which NIACRO could live?

1047. Ms Lyner: May I return to the start and why we may be saying something different? Different organisations have different standing, different responsibilities and make unique contributions. Some are instruments that process legislation. We are in the privileged position that we are not an instrument in that we can choose whether to bid to provide a service. I said, at the outset, that one of our prizes is that we are in a position to draw from our experiences and our relationships with others. The Committee should consider why we might say something different.

1048. It would be of concern to us if the resources did not follow the new regime. We can see that if the regime is implemented — and prisoners are in a situation in which judges require, for their evidence of a reduced risk, that they participate in particular programmes — and the resources are there for particular programmes to be supplied, we would be pleased to see that happen. Mr Conway has already said, we are aware that programmes that would help to reduce risk are not delivered consistently.

1049. If — as we said at the beginning of our evidence — it is about risk reduction and reducing crime, it is really important that programmes are delivered to those individuals, who are going through the system, that would change their behaviour and make them less of a risk. We accept the buying into that, with the reservations that we have about indeterminacy. If the resources are there, they are well used — they are there every day and not diverted off to security — and they are ring-fenced for the purposes of resettlement and reintegration, we will buy in to that process, as we have done already. It is in our name and we are into that process.

1050. Mr Attwood: Are you telling the Committee to be very cautious about the new regime if the required resources are not available, or the culture of the justice system does not change from the front end to the back end?

1051. Ms Lyner: Absolutely; that is what we are saying.

1052. The Chairperson: In any event.

1053. Ms Lyner: There is a responsibility on us, and on the Committee Members who take away the message from this meeting, to say that without the resources there will not be a healthy system. We know that we have a small system, which talks to itself — the relationships between the key players are very good and strong — so we could make a difference.

1054. Regarding links that we have with the Assembly, the other critical aspect is to get other agencies involved. Recently, we were involved in an initiative with the NIO that aimed to bring other organisations together to find out what they could contribute — I have to say that there was a poor response.

1055. Mr Attwood: Are you aware of any discussions about the revenue consequences of this regime?

1056. Ms Lyner: None in particular — we have some details about particular agencies, but we are not in a position to comment on them.

1057. Mr Conway: We are assuming that, when the criminal justice powers are transferred, the money and resources will all go into the big pot, which means that there will be a scramble with the other Departments. What will happen then?

1058. We do not want to leave the Committee on a negative note, because the transfer of criminal justice and policing powers is an opportunity to get things right. In our experience, from talking to colleagues in GB, the Republic of Ireland and other European jurisdictions, once the structures are embedded, they are very difficult to unpick. There is an opportunity here to do it right and rearrange the relationships. Instead of relying on how they historically evolved in a period of conflict, generate a new set of relationships for an effective criminal justice system. It should be possible to drive down the prison population, instead of having to debate the building of more prisons and all the attendant resource implications that are involved — that would be a huge drain on any public body.

1059. The Chairperson: Do you agree that there is a need to look at the prison establishment in general? I do not want to get into an argument in that field, but there is a general need to do that.

1060. Mr Conway: The relationship between sentencing and the prison population is also important. That is one of the things that we tried to figure out in relation to the prison numbers for 2020. For example, if the level of sentencing increases — if it is at the harsh end of the continuum — then there will be more people in prison. However, who makes those decisions, and how can those decisions be projected to 2020? Therefore, it is an art rather than a science.

1061. The Chairperson: The onus in that respect is primarily on the judiciary, is it not?

1062. Mr Conway: Yes, and the judiciary will prize their independence and say that it is nothing to do with anyone else.

1063. The Chairperson: Just before you arrived to give evidence, the Committee was given some information about the comprehensive spending review by the NIO. It states that approximately £14 million will be made available to criminal justice agencies for the implementation of the sentencing provisions. How that is allocated over the period 2008-11 will be dependent on the pace of implementation. This might be an unfair question, but do you think that that figure is reasonable?

1064. Ms Lyner: Notwithstanding that I said that there was some element of redistribution, there are significant new pieces of work that must be undertaken to deliver on the legislation. Being aware of the responsibilities that are likely to fall to the Probation Service alone, I feel that that is a very cautious sum. There will need to be some form of change programme in the Prison Service for different skills to be purchased, and increased responsibilities for the Parole Board are likely. I find it hard to think that that sum could deliver all that is required over a three-year period, unless we just start at year three.

1065. The Chairperson: Everything depends on the pace of implementation, which is an important consideration.

1066. Ms Lyner: I assume that the figure quoted is the top figure.

1067. The Chairperson: If you have any further thoughts on that, perhaps you will let us know.

1068. Ms Lyner: Absolutely.

1069. Mr McCausland: I have some questions about test purchasing. You mentioned the issue of underage purchase of alcohol, and said that better education and community support are more effective ways of addressing the issue. Does that mean better education of young people about the dangers of alcohol abuse, or education of staff in premises about what they should or should not be doing?

1070. Ms Lyner: Both would be appropriate. There are also issues around parenting programmes in that regard. In our response to the draft Programme for Government we raised issues about community programmes on addiction and alcohol-related matters. All of those ventures can make a contribution. However, we are concerned about the notion of using children for entrapment.

1071. Mr McCausland: Is that not common practice? I can think of instances in which test purchasing has already happened in Northern Ireland. The police in north Belfast carried out test purchases — they called it “Operation Alcopop” — in a number of off-licences. Illegal sales of alcohol to young people were detected in a very high percentage of those premises. The method seems to be quite widely used across the water in Great Britain, and has been used here. I am not sure why it is in the legislation; maybe it is regularising —

1072. Ms Lyner: It is regularising the practice and introducing some more protections. However, we do not agree with test purchasing in principle.

1073. Mr McCausland: Why do you not agree with it?

1074. Ms Lyner: Because it uses children to entrap adults. The proposed legislation at least suggests that parents should give permission, which has not always been the case.

1075. The Chairperson: There have been indications in Britain that the level of underage buying of alcohol has dropped significantly as a result of the use of children.

1076. Mr McCausland: What is the precise principle that you disagree with?

1077. Mr Conway: Children are being used in a criminal case to entrap adults. There are other ways to obtain proof. I recall that 20 years ago, when certain communities were concerned about the amount of alcohol being sold to children, this was done — in a very ad hoc fashion. The groups involved were visited by the police and warned not to continue. There are other ways of proving that licensed establishments are selling alcohol to children; it is not that difficult. Sending kids in is not the right way to do it.

1078. Mr McCausland: It has certainly proved difficult so far.

1079. The Chairperson: The use of children to entrap adults is a point of principle as far as NIACRO is concerned?

1080. Ms Lyner: Or to entrap other children, or anyone else.

1081. The Chairperson: Yes, of course.

1082. Ms Lyner: We have brought some information with us, which the Committee Clerk is going to distribute.

1083. The Chairperson: That will be distributed. Thank you very much for a very interesting presentation.

1084. Ms Lyner: Thank you.

1085. The Chairperson: I welcome the representatives of the Northern Ireland Human Rights Commission, and, in particular the chief commissioner, Monica McWilliams. You are familiar with this Building and this Chamber.

1086. Professor Monica McWilliams (Northern Ireland Human Rights Commission): It is interesting to be on the other side of the table.

1087. The Chairperson: Just for the record, will you introduce your colleagues?

1088. Professor McWilliams: Thank you very much, Chairperson. I am the chief commissioner of the Northern Ireland Human Rights Commission, and I am accompanied by commissioner Ann Hope, Dr Nazia Latif, who heads the commission’s policy and research division, and Ms Denise Magill. Given the time constraints, we will provide the Committee with a full written submission on many more aspects of the legislation than we have time to focus on today. We have decided to focus on four key points that raise particular human rights issues.

1089. The Chairperson: We are pressed for time, not just today, but to complete our report. We only have another week or 10 days, so any written submission would be welcome as quickly as possible.

1090. Professor McWilliams: The Committee Clerk has alerted us to that. We will ensure that that paper is submitted to the Committee.

1091. We welcome the opportunity to make a submission to the Committee. We have a unique statutory duty as an independent public body to advise the Assembly on any legislation, and particularly on its impact on human rights. Therefore, we hope that anything we say that pertains to the issue of human rights will be taken seriously. We have some concerns about this draft Order.

1092. There are particular aspects of the legislation about which we wish to express our concern. The Committee has just heard from NIACRO, which has similar concerns, but we will address the issues from a human rights angle. The first issue that we wish to address is that of indeterminate custodial sentences. As the Committee is probably aware, there has already been widespread criticism of this provision in England. The Chief Inspector of Prisons, Anne Owers, has put her concerns on record. In the course of our submission we will refer to a recent High Court judgement on this subject. Dr Latif will take us through some of the human rights concerns about indeterminate sentencing.

1093. We also have concerns about anti-social behaviour orders. We will also deal with the live link issue, which you have just discussed, and test purchasing of alcohol. We will end on a good note: we are pleased to welcome the provision of supervised activity orders. The Human Rights Commission has completed two pieces of research on women in prison. In both of those, and particularly the most recent, ‘The Prison Within’, we made a series of recommendations about those orders. We argued for a system of alternatives for fine defaulters.

1094. In my conclusion, if we have time, I will pick up on some of the points that I heard being discussed in relation to resources and current service delivery. We are very familiar with those issues, having carried out some detailed investigations of what is currently happening in prisons and what alternatives to prison would look like. However, I will not go into that at this stage.

1095. Dr Nazia Latif (Northern Ireland Human Rights Commission): Of course, the public must be protected, and it is the duty of the state, as the fundamental guarantor of human rights, to ensure that the public are adequately protected from all forms of crime — in this instance, from serious and dangerous crime. However, the commission is concerned about the very concept of indeterminate sentences because, as you have already heard today, they appear to punish people for what they might do as well as what they have already done. In introducing the legislation, the Northern Ireland Office has failed to refer to evidence that indicates how indeterminate custodial sentences are working in England and Wales to protect the public and to reduce the possibility of reoffending while protecting the fundamental human rights of prisoners as well as victims. The commission is certainly aware of reports that strongly suggest that the system is not working well in England and Wales.

1096. We note the extra safeguards in the draft Order — the minimum two-year tariff and the introduction of extended custodial sentences as another option — that are not to be found in the Criminal Justice Act 2003, which introduced indeterminate sentences to England and Wales. We are aware that both of those measures are attempts to ensure that people who are prosecuted for relatively minor offences are not subject to indeterminate custodial sentences.

1097. However, we still have a number of concerns. First, the “assessment of dangerousness” as drafted in the Order is vague, and that has also been one of the criticisms of the Criminal Justice Act 2003. We note the omission from the draft Order of measures that are found in the 2003 Act, under which previous convictions of specified offences mean that the court must find that the defendant is dangerous unless it would be unreasonable to do so. Doing away with the presumption of dangerousness is positive, but the draft Order’s addressing of the assessment of dangerousness appears to leave much to the discretion of the sentencing judge. Although the commission has little doubt that judges will use the legislation as intended, if it is to be enacted we would like further clarification in it on the assessment of dangerousness. For example, will every pre-sentence report for every defendant consist of information from probation officers, psychiatrists and psychologists? What happens when there are conflicting assessments? What range and level of information and detail will be provided to the court? Will there be a standard format for reports, and how will those be compiled?

1098. The commission urges that the courts be provided with a consistent assessment process for all cases where an indeterminate sentence is considered. Moreover, even with the minimum two-year tariff, the list in schedule 1 of the Order of specified serious offences for which indeterminate sentences can be given is still broad and does not appear to ensure that the sentencing framework would only be used for the most dangerous offences. Under article 3 of the draft Order, the definition of serious harm is:

“death or serious personal injury, whether physical or psychological” .

1099. The list of offences in schedule 1 ranges from rape and manslaughter to

“burglary with intent to … do unlawful damage to a building or anything in it.”

1100. The commission is also seriously concerned about the possible effect that this aspect of the Order will have on prisoners. In particular, we believe that it is vital to consider the psychological impact on prisoners who are in state custody for an indeterminate period. The commission is already concerned about the numbers of people in need of therapeutic care that end up in the criminal justice system. Any sentencing arrangements and decisions about release must be based on fundamental human rights provisions, for example, meeting the threshold of article 3 of the European Convention on Human Rights, under which no one is to be subject to inhuman, cruel or degrading treatment or punishment. Case law shows that article 3 is to be interpreted widely rather than narrowly. In addition, article 10 of the International Covenant on Civil and Political Rights states that:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

1101. The commission frequently finds itself in the position of urging Government to ensure a holistic, inter-agency, interdepartmental approach to its legislation and policy. If the legislation is to go ahead, despite the reservations, it is vital that adequate strategies and resources be put in place across all those state agencies that will be involved in seeing out the provisions of the Order. The English experience shows that such planning is even more vital, and any responsible Government must learn from that experience before extending it to other jurisdictions.

1102. For example, due consideration must be given — in advance — to whether the Prison Service is, or can ever be, equipped to deal with the provisions of the draft Order with regard to meeting the physical and mental-health needs of prisoners who will be in custody for an indeterminate period, and who have to prove that it is safe for them to be released. Is the Probation Board suitably resourced to deal with those releases on licence that are a result of the legislation? If the answer to those questions is no, then the legislation must wait until the answer is yes.

1103. In England and Wales, releases are dependent on defendants completing certain courses while in prison. There has been a serious lack of resources to ensure that those courses are available. In a High Court decision in July, two prisoners won rulings that it was unlawful to imprison them when they could not access courses that were designed to address their behaviour and help them prove that they were fit for release. The verdict on that case concluded that there was a general and systemic failure in the application of the indeterminate sentence for public protection. The Government are appealing that decision. However, such mistakes should not be repeated in Northern Ireland.

1104. In England, there is strong evidence that the introduction of indeterminate sentencing is leading to overcrowding to the point of breaking. Anne Owers, the Chief Inspector of Prisons, said in her 2005-06 annual report that:

“The last five years have therefore seen a depressingly circular movement: from a system unable to cope with the unexpected pressure of 4,000 indeterminate-sentenced prisoners to one equally unfit to deal with twice that number. The inability to progress these prisoners properly through the system is both a casualty of, and a contributor to, our overcrowded prisons.”

1105. The commission is, of course, aware that a sharp rise in the prison population is not being predicted in Northern Ireland. We are aware of the Committee’s earlier discussion about the estimated increase in the number of prisoners being somewhere between 60 and 120 over the next 10 years. However, we believe that there is a need for a contingency plan in case those predictions prove to be flawed. The resources must be made available to ensure that the situations that have arisen in England and Wales are not repeated in Northern Ireland.

1106. The Chairperson: Under the proposed legislation, there would be no presumption of dangerousness?

1107. Dr Latif: That appears to be the case, from our reading of it. If a defendant in England and Wales has a previous conviction of the same nature, he or she automatically receives an indeterminate sentence. That does not seem to be the case —

1108. The Chairperson: That is not the case here. Therefore, there would be greater discretion for our judges to deal with cases on a wider and more flexible basis.

1109. Dr Latif: Yes, that is right.

1110. The Chairperson: You referred to article 3 of the European Convention on Human Rights with regard to indeterminate sentencing. I know that the case to which you referred dealt with prisoners, resources and so forth. Have any cases been brought in Britain, under the Human Rights Act 1998, with regard to indeterminate sentencing per se? Has a case of that nature been referred to the House of Lords or the Court of Appeal?

1111. Dr Latif: I am not aware of any specific cases. I referred to a particular case that was heard in the High Court and that is being appealed by the Government. That case was not brought under article 3 of the European Convention on Human Rights, but with particular regard to indeterminate sentencing. Nevertheless, we know that case law is evolving quickly.

1112. The Chairperson: Leaving aside the British legal system, are you aware of any cases on indeterminate sentencing in the European Court of Human Rights?

1113. Dr Latif: I am not aware of any Strasbourg case law. The point that I made with regard to article 3 is that the wide interpretation of it is that “torture” does not just mean the physical sense of that term. It can include the psychological impact of the state’s actions on individuals as well as the physical impact.

1114. Professor McWilliams: The Human Rights Commission has experience of having to go to court in instances where people who have come to the end of their sentences are still — for one reason or another — being held in prison, indeterminately. We have intervened in those cases and the judges have demanded that those prisoners be released. There are a lot of human rights issues around holding people beyond the term of their sentences. Some of those cases have been quite difficult. They tend to end up being mental-health cases. This issue would raise that concern.

1115. The Chairperson: If you find any such cases, perhaps you will let us know about them.

1116. Ms Denise Magill (Northern Ireland Human Rights Commission): I wish to address three proposals in the draft Order which give us serious concern. All three proposals have certain common elements. One is the failure of the NIO to make an adequate case for their introduction — Mr Attwood referred to that in the Committee’s evidence session with Peter Smith QC. Mr Smith had referred to the lack of evidence; that is something that comes up again and again in this proposed Order. When legislation of this complexity is being considered, by way of an Order in Council, there is a particular imperative for a well-developed policy rationale to be attached to it — but that is simply not there. Measures that have been introduced in England and Wales are being imported here without any statistical basis or real argument, which is very worrying, because they have serious human rights implications.

1117. The second common element of the three proposals is that there is insufficient detail on how they will work in practice. Although a framework exists for measures such as the test purchase power and live links to court, there is no real detail about how they will operate. That is to be included in secondary legislation that we currently do not have sight of.

1118. The proposal for test purchase powers, which was mentioned earlier by NIACRO, would amend existing licensing law so that police officers can direct minors to enter licensed premises and purchase alcohol. There are two conditions to the use of the power: that the constable is satisfied that all reasonable steps have been, or will be, taken to avoid any risk to the welfare of that person; and that a parent has given written consent to the child’s being sent into the premises for the stated purpose.

1119. Like NIACRO, we have grave concerns about the use of the test purchase power. Of course, like all responsible members of society, the Human Rights Commission does not want alcohol to be sold to young people, but we want to address the problem in a way that does not put individual children at risk. The best interests of the child should be at the forefront. We do not consider it to be in the best interest of any child to be used to promote the commission of a criminal offence in an entrapment situation. We cannot see what possible benefit there could be to a child to be involved in such activity. We do not believe that the requirement for parental consent can meet that point. Even with parental consent, in what circumstance could it possibly be in a child’s interest? International standards are very clear in that regard. Article 3 of the UN Convention on the Rights of the Child, by which the UK is bound, states that:

“In all actions concerning children … the best interests of the child shall be a primary consideration.”

1120. Article 16 of the Convention states that:

“No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.”

1121. Article 36 states that:

“States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

1122. We are concerned about how a child would be selected for the purpose of a test purchase. Let us think about that. Which child will end up going into licensed premises to operate the test purchase power? We must think about which parent will give consent to their child to do that. It has to be the lesser of two evils; perhaps a child who has come to the notice of the police and may be the subject of an anti-social behaviour order or other criminal justice dispensation and who, as an alternative, is then invited to assist the police in ensuring a prosecution. We have grave concerns about that.

1123. We have tried to contact children’s rights organisations in England and Wales to ascertain whether concerns have been raised about the practical application of test purchase powers there, but this provision operates in the shadows, and it has been difficult to get any information on that subject.

1124. We do not understand why it is necessary for the police to have that power, rather than mounting their own undercover operations in order to witness the commission of an offence. If it is a targeted operation, and if they are going to pick a particular licensed premises because they know that alcohol is being sold to minors, why do they not pursue prosecutions instead of using a child in that way? The explanatory document, which accompanies the draft Order, provides no rationale for the need to introduce that power.

1125. An obvious risk to the child’s safety arises from this, and one ancillary point is the implications of that particular power under section 75 of the Northern Ireland Act 1998. The NIO equality screening has concluded that the power has no adverse impact on young people. However, given what I have already said, we cannot see how that conclusion could be correct, and we believe that the power should be subject to a full equality impact assessment.

1126. The second matter that I want to address is the issue of live links to court. Mr McFarland referred to this in the previous session. The current practice is that live links can be used for remand hearings for defendants in custody who are awaiting trial. The draft Order proposes to extend that power to two further categories of proceedings. One is sentencing hearings and the other is appeals under the Criminal Appeal Act 1995.

1127. The important distinction regarding those two is that of the defendants’ consent. For sentencing hearings, the direction of the appearance by live link can only be made by the court with the consent of the offender. However, that is not the case for a direction relating to a criminal appeal in the Court of Appeal. Although the live link direction cannot be made without the parties to the appeal having had an opportunity to make representations, the consent of the offender is not required. Therefore, a defendant could consequently be denied the opportunity to be present in court for their own appeal. Again, very little is provided by way of rationale for that decision.

1128. The Human Rights Commission does not want public money being used unnecessarily. The NIO cites merely two reasons for the change: the improved security of prisoners and the reduction of delays in court hearings regarding transport of prisoners to the Court of Appeal. However, no statistics are provided regarding either breaches of prison security or court delays. Therefore, a significant change in what we, as a society, expect from the criminal justice system is being proposed without any statistical basis being provided.

1129. I recently attended Belfast Magistrate’s Court in order to see the operation of the existing live links for remand hearings for those in custody. My impression was that the barriers for the average defendant to fully understand and participate in the proceedings were starkly and exponentially increased by the use of live links. The judge, the prosecution, the defence, probation officers, the defendant’s representative, anyone who wants to be in the public gallery and court staff are present in the court. However, the person most directly affected by the proceedings is not present.

1130. Respect for the criminal justice system and people taking responsibility and fully facing the implications of their actions is often talked about. What I saw reminded me of some sort of appalling video game — a sort of justice by remote control. Surely one of the functions of sentencing and appeal hearings is to allow a defendant to face the court and take responsibility for their actions.

1131. For certain defendants, it is understandable how physical separation from the court would be attractive as it could increase their ability to detach themselves from the proceedings and avoid taking responsibility. It certainly did not strike me as a practice that should be extended to important appeal and sentencing hearings.

1132. Another important extension to the live links has been proposed is regarding the vulnerable accused. That is an issue that we will address in more detail in our written submission. We have concerns for general defendants regarding this, and it is of even greater concern for the vulnerable accused. In relation to the vulnerable accused aged 18 years and under, the NIO claims that by extending that power, it is meeting the requirements of the decision of the European Court of Human Rights, which came about as a result of the case S.C. versus the United Kingdom in 2004. The subject of that case was a vulnerable child who was subject to proceedings in the Crown Court. The court found that the establishment of a specialist tribunal that would help the vulnerable accused was required.

1133. I do not see how putting a vulnerable child with a reduced mental ability in a room on his or her own with a television meets the requirements of that case. That case talked about a potential package of measures to support the vulnerable accused, not simply putting them in a room on their own with a television.

1134. The conclusion is that it is difficult to avoid the idea that this is merely a cost-saving exercise. The commission feels that the extension of live links at such core court hearings, in some instances without the consent of the defendant, may not in all circumstances serve the interests of justice, nor indeed foster respect for the criminal justice system. Article 6 of the European Convention on Human Rights, the right to a fair trial, is clearly engaged in that scenario.

1135. The third and final area relates to interim ASBOs. I am sure that some of you are aware that the Human Rights Commission has a long record of opposition to ASBOs, which dates back to their introduction in Northern Ireland in 2004. It is not that the commission wants to see antisocial behaviour, rather that it wants to see an effective mechanism for dealing with such behaviour, and one that does not have a significant adverse impact on human rights protections. Therefore it is with dismay that the Commission notes the proposal in the draft Order that applications for interim orders which currently exist are to be possible without notice being given to the defendant.

1136. We acknowledge the existence of precedents for ex parte proceedings, we see them in a range of court proceedings; for example, in domestic violence situations. However, this situation is different in that the ASBO proceedings blur the division between civil and criminal law, and the odds are very heavily stacked against the person against whom the order is sought. Hearsay evidence is admissible and the normal criminal standard of proof does not apply. As of October 2006, less than 1% of applications for ASBOs had been turned down in England and Wales. Thus, an interim order could proceed without the person having an opportunity to make their case at that point. They would not have the opportunity to speak at a key part of the proceedings. It seems likely that it would increase the likelihood of a full order being made.

1137. In 2005, there was a judicial review decision in Northern Ireland, because originally, as I said, we did not have the power to make ex parte orders, and a magistrate turned down a request to make an ex parte order in 2004. In the judicial review decision, Lord Justice Girvan reflected many of our concerns, in particular, the use of an apparently civil procedure that can potentially give rise to criminal liability. He considered that the nature of ASBO proceedings increases the imperative against such orders being available on an ex parte basis.

1138. Unfortunately, the NIO has decided to go ahead and seek that power, and, again, as I said in relation to the other two matters, no evidence has been produced to show that the need to serve interim orders has proved problematic. One would have thought that the interference with fundamental rules of natural justice would have required a demonstration of need. Not only has the NIO not demonstrated that need, but I have discovered from discussions with the Community Safety Unit in the NIO that it is not in a position to demonstrate that need. Since 2004, 62 ASBOs have been granted in Northern Ireland, but the NIO is not able to say how many of them originated as interim orders. Therefore, it is seeking an extension of a power that it does not know many times it has been necessary to use to date. The NIO’s request is premature. There has been no proper evaluation of the use of ASBOs since 2004. An evaluation is underway; the NIO and Criminal Justice Inspection are jointly carrying out a major evaluation of the use of ASBOs. This power should not be sought in advance of that evaluation being made available.

1139. The Chief Commissioner: I was going to ask Ann to sum up briefly, but I am not sure if there will be time.

1140. Ms Ann Hope (Northern Ireland Human Rights Commission): As the chief commissioner said in her opening address, the Commission welcomes the statement from the NIO that the proposals are aimed at ensuring that custody is used only for those offenders who merit it. In particular, the commission sees it as a positive development that supervised activity orders will be used instead of custody for fine defaulters. It is strongly of the view that that option should be maximised and that the necessary resources should be in place to ensure that appropriate activities, with the restorative element, are made available. A report by Baroness Corston focuses on alternatives for women in the criminal justice system in GB.

1141. She has listed a number of pilot projects in, for example, Glasgow and Yorkshire, that show that not only do those projects work, but that recidivism is way down in such areas where they are put in place.

1142. The Commission is aware that some people may not see those sorts of activities as appropriate punishment. However, a large body of international standards exists — for example UN standard minimum rules for the administration of justice, UN standard minimum rules for non-custodial measures and the EU framework decision on restorative justice — that support community-based restorative justice. In many cases, effectiveness in minimising reoffending is best met without custodial sentences.

1143. Our own research has shown that there is good reason for punishment not to be seen as the primary goal in the state’s dealing with fine defaulters. The Commission’s investigation into the female prison at Hydebank Wood, a research project entitled ‘The Prison within — the imprisonment of women at Hydebank Wood 2004-06’, stated:

“In explaining fine-default, it is imperative to consider the poverty and deprivation experienced by many women, alongside addiction to, and/or dependency on legal or illicit drugs and alcohol. Economic marginalisation impacts heavily on many women in conflict with the law, leaving them vulnerable particularly if they have responsibilities as mothers or carers.”

1144. Therefore, we welcome the supervised activity orders as one way to deal with fine defaulters and to keep people out of prison.

1145. Mr Weir: Thank you for your evidence, although it will not surprise you greatly that I do not agree with everything that you have said. Although I do not agree, I can understand the objection to the use of live links in the Court of Appeal but, as I understand the legislation, live links would only apply in sentencing where there has been the consent of the —

1146. The Chairperson: There is some interference in the transmission. Will people please check their mobile phones and ensure that they are switched off?

1147. Mr Weir: If I picked you up correctly, when sentencing takes place and a live link is used, the consent of the person who is being sentenced would be required under the legislation.

1148. Ms Magill: That is correct.

1149. Mr Weir: I can understand the objection to the use of live links in the Court of Appeal, but I am not sure why you object to its use when the person who is being sentenced, and could be adversely affected, consents to a live link. It seems that a person will have the right to be put in court irrespective of whether they want to be in court for the sentence or not. That seems to be a nonsense of an objection.

1150. Ms Magill: I take your point, Mr Weir. However, as I said earlier, society as a whole wants people to face up to their responsibilities before the court. Sentencing is not akin to getting married or having a child, but it is a fairly significant experience in people’s lives. Therefore, they should be present in court, rather than sitting in a room on their own in Maghaberry in front of a television screen.

1151. Mr Weir: It would depend on the situation. Other witnesses have said that the legislation would make live links for sentencing permissible, rather than compulsory. For example, if a victim had to face a person who was charged with serious offences and had certain concerns over the perpetrator, the victim might not want to see the perpetrator in court. The perpetrator might have some degree of recognition of the sensitivity of the situation, and might not want to appear in court. In those circumstances, it would seem perverse to make that person appear in court when everyone is saying that they are happy with a video link.

1152. You said that it is difficult to see a benefit of test purchasing of alcohol. Surely there is a benefit to children as a whole, if the scheme were used as an effective device to reduce the amount of alcohol that is being sold to minors.

1153. Ms Magill: There would be a benefit to children as a whole, but a risk to the individual child.

1154. Mr Weir: As regards the individual child, you mentioned that you had consulted with groups in England where the test-purchasing of alcohol has been used. It has been used in Northern Ireland on several occasions, but the law is being regularised. It is used much more extensively in England. You mentioned that when you contacted the groups in England you received a sort of shadowy response.

1155. Ms Magill: Yes. I spoke to the Children’s Rights Alliance, and I will endeavour to find out more information and, if possible, provide a written submission. However, it said that the issue was in the shadows and that there was no good flow of information about it. It was not the case that the Children’s Rights Alliance had no concerns; just that it had difficulty gathering information.

1156. Mr Weir: It seems strange that, if there are widespread concerns about a practice that is being used extensively in England, very little concrete evidence of problems has been presented to us.

1157. The Chairperson: If any further information in relation to the British experiences becomes available, maybe you would let the Committee know. I would like to move on quickly.

1158. Ms Ní Chuilín: I found it interesting that the NIO said that test-purchasing has no equality impact. The NIO took it upon itself to screen out the equality issue before finding out whether there was an impact. We must carry out an equality impact assessment.

1159. If my interpretation of what you said is wrong, please correct me, but the suggestion seems to be using children to entrap people in off-licences or shops who are selling alcohol to underage people with no suggestion of, or strategy for, using other methods. The cosy initiative, for example, suggests using the names of the premises on carrier bags and shopkeepers being robust about asking for identification. It seems that that is an easier option.

1160. We are talking about education and raising awareness. As a parent, I would not consent to my child being used. I am listening to my instincts, and that plan does not sit right with me. What about using anecdotal evidence from the community? How would you select a child to carry out the plan? That is what my party is querying. For example, if a child purchases alcohol, will he or she be vulnerable? Will that child be selected to carry out the plan? That is a concern. Do you get that strong feeling?

1161. Ms Magill: Absolutely.

1162. Ms Ní Chuilín: As regards the equality issue, if you can show evidence from children’s groups in other jurisdictions or countries, especially any equality evidence, we would appreciate seeing that as well. It strikes me that the issue contains too many unanswered questions. I feel that it is the wrong way to approach trying to make alcohol retailers more responsible.

1163. Mr Attwood: I have only one question, because you gave very strong views to the Committee. I want to check one thing, because my mind drifted a little. Dr Latif said that the legislation should wait in the event of there being insufficient resources to allow it to be implemented as it was best intended. Is that the advice of the Northern Ireland Human Rights Commission?

1164. Professor McWilliams: Yes. Yesterday, I read the Probation Board’s corporate plan. I know that it has given evidence to the Committee, but I was struck by the interesting way in which it has presented its current ability to deliver services. The plan contains a table of highs and lows. One of the lows is that the board has not been able to deliver on its resettlement plans for the past few years.

1165. After reading that and hearing what was said earlier, I must question how the Probation Board intends to deliver the new proposals if it cannot deliver its current ones.

1166. When we were sitting down to discuss the matter, we realised that it would present a huge amount of work for the Probation Service. I have listened to the witness from NIACRO, Olwen Lyner. She is absolutely correct in that which she has said about the rolling out of funding that has been set aside.

1167. I have written to Criminal Justice Minister, David Hanson, about a concern that the Human Rights Commission had with regard to a recommendation that was made as a result of our research on prisons. That research indicated that there did not seem to be much in the line of resettlement, or alternatives, for women in prison. Our researcher, Ann Jemphrey, picked up the fact that one third of all women prisoners in Northern Ireland are fine defaulters — at a cost of £90,000 per annum for each prisoner. It is an incredibly expensive way of dealing with fine defaulters.

1168. I asked Minister Hanson what the alternatives would be. It seems that £9 million has been set aside, in Britain, for alternatives. That was not with regard to the legislation that is already in place in Britain. Rather, it was put in place as a result of Baroness Curston’s report, which was the result of a thorough investigation of the existing system with regard to that which works, that which does not work, and that which could be economically cost effective.

1169. When I asked where Northern Ireland’s money for alternatives was, I was told that there does not have to be a read across of funding and that there is no read across of funding. Recently, I asked the Probation Board’s director if he was aware that we were missing out on that funding. Obviously, he was aware that this funding was coming to Northern Ireland. Those are real issues with regard to devolution — apart from that which is currently not being provided. Therefore, prison is the back-up for that which cannot be provided in the community. If one adds to that the provisions that are included in the draft Criminal Justice (Northern Ireland) Order 2007, it seems that the resources are not there. That was Dr Latif’s point.

1170. Mr Attwood: There seems to be a tension in that the Probation Board is enthusiastic about the new regime and have advised the Committee, for example, that it had been involved in drafting the legislation. Therefore, it seems to have played a quite intimate role with the NIO with regard to the legislation. While Probation Board members talked at length about the issue of resources, they did not go as far as to say that they were keen on all of it, but that it could not be done because the resources would not follow — regardless of the £15 million that is planned at the end of three years. The Probation Board is central to the matter, is enthusiastic about it and, although concerned about money — and have flagged up that issue — they have not putting a red light on it.

1171. Professor McWilliams: We are aware of that.

1172. Mr McCausland: As regards to the test purchases, over the years there have been a number of articles in publications — such as the Municipal Journal — which explain how it has worked in practice in Britain. Have you looked at any of those?

1173. Ms Magill: No, I have not. Thank you for bringing those to my attention.

1174. Mr McCausland: All of the other methods of addressing the issue — whether they be markings on bags, education, or community initiatives — all need to be place. Many of us hold the view that, in addition to those, test purchases — as a method of detecting the culprits — needs to be in place.

1175. Professor McWilliams: Mr McCausland will already know, from our evidence, that we operate in the best interests of the child. We would have worries about mission creep once one starts down the road of using children for that particular purpose. Where, then, would the child be used for other purposes? We do not believe that that is the best response to what is an unacceptable practice.

1176. Mr McCausland: I am only aware of one or two test purchases for alcohol or cigarettes.

1177. Professor McWilliams: We are aware of entrapment — as you are well aware of the use of children for entrapment in lots of other examples. There are real concerns about that.

1178. The Chairperson: Clearly there is a difference of opinion. I thank Professor McWilliams for an interesting presentation. If there were any other matters that she would like to commit to paper, for the Committee, I would be happy to receive them. The Committee knows that you will be making a written submission to it, as quickly as possible.

1179. Professor McWilliams: I wish the Chairperson and the Committee all the best. I sincerely hope that the Committee has much more luck than that of the previous Assembly’s Committees in having their views taken seriously. Since the Committee has given so much of its time to the draft Criminal Justice (Northern Ireland) Order 2007, I hope that it does not go through unamended.

1180. The Chairperson: Thank you very much.

1181. We move on now to the Northern Ireland Prison Service. I welcome its director, Mr Robin Masefield, Mr Brian Ingram, head of the resettlement branch and Mr Eddie Finn, head of public protection policy. Members have copies of Mr Masefield’s submission.

1182. You and your colleagues are very welcome, Mr Masefield. You may take as read the document with which you kindly furnished us. You will, of course, want to make some remarks, after which we will move on to questions from the Committee.

1183. Mr Robin Masefield (Northern Ireland Prison Service): Thank you. I am grateful to you for making the introductions to the Committee. We are delighted to have this chance to give evidence to the Committee today. Is it correct that we have a total of about 30 minutes?

1184. The Chairperson: That is correct.

1185. Mr Masefield: I will speak for no more than about five minutes. I hope that the evidence that I tendered to the Committee Clerk at the end of last week was of value to the Committee. I want to place firmly on the record that I, and the Prison Service, are acutely aware of the significance of the Order. It will radically change the face of the criminal justice system in Northern Ireland. We are getting our heads round what it will mean for the Prison Service.

1186. We are doing a great deal of work with our colleagues in the Probation Service, particularly Brian McCaughey and others. Brian Ingram, who heads our resettlement branch, and I, have regular meetings with him and the Probation Service’s senior management team. There will be another strategic session later this month to work through the ramifications of the Order.

1187. I agree with many of the comments made by our distinguished colleagues from agencies in the criminal justice system, whose evidence to the Committee precedes ours. In particular, I would have used exactly the same words as Kit Chivers who said that the Order will require the Prison Service to step up its game significantly. In a moment I will touch on some areas where we are finding it challenging to do what is required of us at present. Resources and delivery will be major issues for the Prison Service.

1188. The Prison Service is in transition. We are moving from an era in which we concentrated on the security dimension of our role, and we are making strides in moving towards public protection and, in particular, resettlement. It is significant that Eddie joined the service as head of public protection only a year or so ago, and Brian helped to devise the resettlement strategy for the entire criminal justice system, which is three and a half years old. That is how long we have been focussing on those elements of our role.

1189. We picked up on a theme in the evidence from the Northern Ireland Human Rights Commission and others, which was the importance of learning from the experience across the water. Before Christmas, I spoke to Phil Wheatley, who heads the Prison Service in England and Wales, and the head of his interventions unit and two of his colleagues paid us a full-day visit this week, precisely so that we could talk to them and learn from their experience of the implementation of the Criminal Justice Act 2005. We talked about the challenges they have faced and asked for advice on how we should move forward. We are looking outside the service to learn what we can.

1190. A specific example of what we are doing is that the first mandatory two-day development course for all main-grade officers starts tomorrow, and courses will be held for a year or so. The public-protection theme in the draft criminal justice Order is at the heart of that training course. Although there was some training as long ago as 2000-01, there was a significant pause after that. Recently, we have fully addressed the training needs of our staff. During the past 12 months, all middle managers completed a five-day training course on similar issues.

1191. There has been some understandable confusion about prison numbers. Today’s prisoner population is 1,432. Mr Finn, as a former head of the NIO’s statistics and research branch, has played a major role in helping us arrive at a best estimate of the future prisoner population. We believe that, in 2022, 15 years from now, it will have almost doubled, to 2,700. That takes account of the changes due to be made by this draft Order. That is what the prison building programme, which Paul Goggins announced on 18 December, is predicated on: 400 extra places in the next three years, and the prison at Magilligan to be rebuilt thereafter.

1192. Several figures have been quoted, but we think that 120 prisoners or more will come through with public protection sentences after 10, 12 or 15 years. That will be offset to some extent by the use of methods such as the supervised activity order, which will help to provide a diversion to custody, curfews, and electronic monitoring, which is a welcome development for those who do not need to be in prison, when it comes in.

1193. I understand that the Committee has heard from the Northern Ireland Office today about the figure of £14 million; I refer to a figure of £4∙7 million within our own budget. For the Committee’s edification, I might mention that — and you are probably onto this already — the figures do not necessarily add up. On one level, there is quite a simple reason for that. The Northern Ireland Prison Service has a service level agreement with the Northern Ireland Probation Board. I pay the board £1∙3 million each year in total. I anticipate that that will increase over the period of the comprehensive spending review. Mr McFarland was asking about that. The probation service currently plays a role in prisons in helping us to deliver programmes. They provide some programmes; our staff provide some; our psychologists provide some. I have had discussions with Brian McCaughey at strategic level, and we anticipate that that role will increase. It will be a joint exercise. We will retain responsibility, building on that service level agreement, but there will be a financial transfer to the probation service.

1194. That takes me into two critical areas. The Committee has heard evidence of the mental-health challenges that many offenders, sadly, face. The healthcare transfer to the Health Department will be of direct benefit to the service, in that it will lever in additional support in the areas of psychology, psychiatry and general healthcare. That will be very welcome. We have had good discussions at ministerial and official levels with the Department, and we have reached agreement on that. We will be providing additional funding, over and above the existing funding, to provide development money for mental-health issues.

1195. I wrote before Christmas to the Chief Medical Officer. We are in discussion with him about forensic psychologists. That is an area that we would have to flag up if we had a high-low table. We struggle. We have a complement of 15 forensic psychologists; I currently employ eight. A ninth is coming shortly, I hope. To put it crudely, you cannot get them in the British Isles for love or money. There is a simple solution to that. They play an excellent role in delivering the programmes. In particular, they focus on the top-end programmes: the sex-offender treatment programmes and some of the behavioural cognitive skills programmes. We need to think about different ways of working that through. We will be advertising this month for psychological assistants who do not have the forensic qualifications, and we are exploring with the Probation Board the use of probation officers, who have also demonstrated their ability to help deliver programmes.

1196. I want to provide a little reassurance for the Committee on how, together, we can gear ourselves up, not just with respect to the money that is available, but also with regard to the people with the skills to deliver the programmes. That ties back into linkages with England, and the advice that we have received on what has worked and where the investment is best placed to ensure that we do not run into difficulties with the courts such as we have seen across the water, where individual prisoners have not had access to their programmes by the time their tariffs are up for consideration by the Parole Board.

1197. The Chairperson: In his submission, Peter Smith mentioned that there is no open prison in Northern Ireland. He put a lot of emphasis on that fact. Do you care to comment on it?

1198. Mr Masefield: I have read the transcript, and I have discussed the subject with him and other life sentence review commissioners in the past. Mr Smith is right. However, we are doing what we can within the existing facilities to remedy the gap. I would like to flag up three areas. Mr Smith referred in his evidence to the prisoner assessment unit in Crumlin Road Prison. It is not a wholly satisfactory facility. It is a small part of that prison, originally built as a locker room where the staff changed. We can, at most, house 20 prisoners there. It is well situated, but the facility is not a fully open prison of the type that I am used to having in the Prison Service in England.

1199. We have Foyleview at Magilligan, where there is provision for 82 places for prisoners who are approaching the end of their sentences. Hitherto, we have not chosen to send life-sentence prisoners to Magilligan. From time to time, we review that decision in order to ascertain whether there are sufficient numbers of such prisoners — probably in the order of 20 to 25 — to ensure that they would not get lost in the wider prison population, at which point there might be value in sending them to Magilligan. When we consider the nature of the population to be housed in the new prison at Magilligan, we will certainly address that question — especially in light of the point that Peter Smith rightly made about finding accommodation that will give such prisoners more responsibility for their own arrangements, catering and suchlike. Interestingly, that is now the case on the new landing that we have created for the women in Ash House, who have their own keys and make decisions about their lock-up times and catering arrangements.

1200. The final element of the jigsaw is the changes that we have made — with which perhaps not all of the life sentence review commissioners are fully au fait — in Mourne House, where women prisoners were previously held. We have two facilities there — Martin House and Wilson House — which currently contain about 25 life-sentence prisoners, who are potentially within the last three years or so of their sentence, and they must meet certain criteria in order to demonstrate that they are ready for release. They have greater independence and responsibility for their living arrangements, and that is as close as we can get to an open prison in the Maghaberry complex, although I accept that the prisoners are still behind a high wall.

1201. The Chairperson: Throughout these hearings, there has been a tremendous emphasis on the need for additional resources. Obviously, the Prison Service will require additional resources. Are you confident that such resources will be made available for you to properly carry out your work?

1202. Mr Masefield: Yes, I am 100% confident that if Ministers decree that funds are to be made available in the comprehensive spending review allocation, then they will be. However, I would make two further points. First, that is a fair question to ask because it is not so much about the money but about delivery and the competence of individuals to apply their skills. For example, and going off at a tangent, Maghaberry was built to house 450 prisoners. Currently, it houses more than 800. The workshops are inadequate; I can only put 120 individuals into them daily, and I simply do not have the space to provide additional work spaces. Half of the inmates are on remand, so that issue does not arise, but I am sure that you understand the point that I am making. It is incumbent on us to put any new money to the best value that we can.

1203. Secondly, I referred before to our main grade officers. We undertake trawls for facilitators among our main grade officer staff on residential landings, and that is something that the area chairman of the Prison Officers’ Association, Finlay Spratt, and I completely agree on. Prison officers can add real value by engaging in the delivery of programmes, and I welcome the opportunity to take that forward.

1204. Ms Ní Chuilín: I also sit on the Health Committee. You are probably aware that there was no discussion there about the transfer of healthcare. Indeed, it was only having given evidence to the Northern Ireland Affairs Committee that we realised that that responsibility was to be transferred, and we still do not know what the budget will be. I am delighted to hear that you will be transferring some of that money, because my own experience of prison is that prisoners are treated as prisoners first and patients second, even when seriously ill. Access to healthcare is always considered to be a privilege rather than a right. I would like that issue to be addressed.

1205. There are huge waiting lists here for people seeking assistance and care for mental-health concerns, which is a human-rights and equality issue. Already, it is being said that prisoners are now expecting to have access to mental-health care and that we will be expected to pay for it. That is not conducive to ensuring that everyone has access to treatment on an equal and equitable basis. It would be useful to know what the money has been allocated for.

1206. My other point relates to service delivery. You already know this, and you have said so: not everyone needs a forensic psychiatrist. Some simply need family support or one-to-one or group work. Any facility or resource that helps people is a good thing. The majority of prisoners are not sexual offenders. It is disproportionate to have eight forensic experts working in that area, considering that, according to your statistics, 70% of the rest of the general population are in need. Within that 70%, it is unclear how many people have personality disorders and mental-health difficulties, such as short- or long-term depression.

1207. The evidence that you have provided is that a high percentage of prisoners have been in care as children, so there is a history there. They have been confined in institutions of one form or another throughout their whole lives. That information, therefore, would be really helpful.

1208. It is not that a head of steam has built up, but, knowing this place fairly well, I think that when it comes to access — particularly to healthcare for prisoners — there will be some bartering, and that will have a huge equality impact. How much money is being transferred for that?

1209. Mr Masefield: The figure in the estimates is £6 million. That is on public record.

1210. The Chairperson: What is the £6 million for?

1211. Mr Masefield: It is for the healthcare of prisoners. We have identified a modest additional provision, which we believe is appropriate. I have been in close discussions with the chief executive of the South Eastern Health and Social Care Trust, which is the lead trust, and the Eastern Health and Social Services Board. I take your point and understand it.

1212. One of the main advantages of the transfer of healthcare relates to the frequency with which prisoners come in and out of prison. We have fewer than 1,500 prisoners in custody at any given time — this is another statistic that can cause confusion for those who are not familiar with the system — but, last year, there were over 6,400 receptions. The average individual stay in prison is three months. Over one third of our receptions may be on remand; others are fine defaulters, who only serve a few days. Many of those who are remanded in custody will get bailed and go back to the community. Therefore, as well as the custodial side, there are huge advantages for the community in having that joined-up healthcare. That is really what we are striving to achieve through the transfer.

1213. Ms Ní Chuilín: Do you understand the point that I am making?

1214. Mr Masefield: I do.

1215. The Chairperson: Due to time pressures, I ask colleagues to keep their questions short.

1216. Mr Weir: One of the concerns that has been raised is that changes to sentencing policy, in particular with regard to remission, will, to quote NIACRO, adversely affect the “cornerstones” of offender management and have a potential adverse affect on the behaviour and attitude of prisoners. How do you respond to the criticism of the potential changes?

1217. Mr Masefield: The intention is — and this comes from the English experience — to provide prisoners with an incentive to engage in offending behaviour programmes and other remedies. You rightly referred to such basic elements as education, literacy and numeracy — even the ability to fill in a benefits form or a job application. Sadly, a fair number of those who come into our care cannot manage that level until they have gone through the process and been helped by it. There is a real opportunity there to take that forward.

1218. Mr O’Dowd: There are two points that you have broadly covered about the affect on discipline and morale among prisoners with indeterminate sentences. However, the idea that our prison population is going to grow by 100% by 2015 is deeply depressing, because it says to me that our society has failed. If we as politicians have not created a new society by 2015, we will have a prison population of 2,700.

1219. However, if we can help create a new society, then that population should fall, because children who leave primary and secondary school with no numeracy or literacy skills, and people who have mental-health problems and personality disorders that are not detected at an early age, and people with a range of other issues can end up in jail. Although some do end up there because of pure badness, the rest are being failed by society, and if the prison population is increasing by 10% a year, that is depressing. If I am still involved in politics in 2015 and we have a prison population of 2,700, we will have failed.

1220. Mr Masefield: I have two quick points to make.

1221. First, I hope that you will still be involved in politics in 2022, because, for the record, it is then, 15 years from now, when we think the prison population will have virtually doubled to 2,700. Secondly, you are absolutely right, and that is why Paul Goggins and I, with our colleagues in the Probation Board, are working in a lot of areas. Healthcare is one example which is in the forefront, but also the Department of Education and the Department for Employment and Learning are exploring opportunities to address those very issues that lead to individuals sadly ending up in custody after going through various damaging processes earlier. A co-ordinated, holistic strategy for dealing with offenders would have real advantages, and the Prison Service is up for playing a part in that.

1222. Dr Farry: I have two questions. First of all, and arising out of Mr O’Dowd’s point about the numbers in prison, do you have any projections of the cost implications of running the Prison Service over that time frame? As the responsibility transfers to the block grant alongside all the other competing demands that the Assembly will have to address, that is an important consideration in determining what can be delivered.

1223. Secondly, as you address both the implementation of the legislation and other issues that need to be dealt with, such as the mental-health needs of prisoners, do you anticipate that the unit cost of dealing with prisoners is going to increase in Northern Ireland, as well as the number of prisoners? I am conscious that Northern Ireland already has a much greater unit cost per head compared to England and Wales, because of our small size and issues such as the separation of prisoners in Maghaberry.

1224. Mr Masefield: I can give you a little comfort on that. I am confident — touch wood — that the unit cost will reduce. We are bringing in, not cheaper staff, but a different range of staff, better equipped to meet the needs of the current service. Consequently, we will be recruiting operational support staff this spring at virtually 50% of the salary levels of the existing main-grade officers, and we will be exploring other opportunities like that.

1225. Dr Farry: Will that be cancelled out by the greater costs involved in dealing with each prisoner through this legislation?

1226. Mr Masefield: I am confident that there is sufficient funding for the duration of the comprehensive spending review period.

1227. Dr Farry: That is only three years. We will leave that point sitting, Robin.

1228. Does the Prison Service have a view on whether under-18s should go to Hydebank Wood or to Woodlands Juvenile Justice Centre in Bangor? Does the Prison Service have a view on that, and what is the current situation? Is it that virtually all under-18s are going to Bangor? How many of that age group do you have in Hydebank Wood at the moment?

1229. Mr Masefield: I could possibly give the Committee a very short answer to that in a couple of days’ time. It is hugely striking that when I joined the Northern Ireland Prison Service three years ago there were something in the order of 36 juveniles — young men under 18 — in Hydebank Wood. Today there are nine, and seven of those are on remand. That is encouraging, although that can always change when one is away from the post for an hour or two. There are no females under 18 in Hydebank Wood. Those are positive steps, and I pay tribute to the Youth Justice Agency for the facilities and the good work done at Woodlands.

1230. The Chairperson: The argument is over the presumption that they should be in Bangor rather than Hydebank. Can you comment on that?

1231. Mr Masefield: I suppose I am trying to avoid getting drawn into commenting on the substance and policy of the draft Order. I take comfort from the way in which the judiciary is interpreting the current provisions and opportunities available to it, and the further scope that would be afforded to it by the draft Order. One of your contributors — it may have been Kit Chivers — recognised that there will probably be a handful of individuals for whom, sadly, Hydebank Wood is the right place, because they are highly dangerous.

1232. The Chairperson: I think that it is a common case — in certain circumstances, some juveniles will be there. However, the point is about the presumption.

1233. Mr McCausland: The proportion of prisoners with mental-health problems or personality disorders is given in your submission as being 70%. Can you provide some additional information so that we can get a broader picture of the scope, scale and breakdown of mental-health problems and personality disorders?

1234. Mr Masefield: I would love to give you an essay on that subject. I will try to be brief. In my experience, there is a spectrum; it is a grey area. I think that most of my colleagues who know the criminal justice world would probably now accept that. Quite often, an individual will show signs of having a mental illness and a personality disorder, and, sadly, many have substance misuse or addiction issues, too. Throw all that into the equation, and, as Roy McClelland says, it is a pretty toxic mix, especially in the custodial environment.

1235. Our last fully comprehensive survey was carried out three or four years ago. I could quote from its findings. I am talking to John Compton about carrying out, as a matter of priority, another needs analysis and a more up-to-date assessment of those issues. I am very keen that we should do that now. This morning, I received a paper that was produced by the Scottish Prison Service last month, and there may be value in benchmarking against that. Sadly, over half of young offenders probably have personality disorder issues, however they are defined — individual psychiatrists will perhaps take slightly different slants on that. Of course, the numbers of offenders whose clear mental illnesses could mean that they would fall under a different part of the legislation and need custody in a mental-health context are much smaller.

1236. Mr McFarland: I am curious about the deliverability of all of these proposals. Life used to be simple: prison officers wandered around with keys on their belts, and they locked people up. That was their job, and it was clear what their role was. The Probation Board dealt with prisoners when they came out of prison and tried to help them to re-establish themselves in society and looked after them, and so on.

1237. It is a completely different ball game now. The Probation Board are in court during the trial and sentencing. They have been tasked with delivery of areas that the Prison Service was supposed to be dealing with, but, from what members of the Probation Board have said, was not perhaps dealing with that well, for whatever reason. As Mr Attwood said, the Probation Board now sees itself as building a fairly substantial empire in the middle of Prison Service territory. Do you foresee conflicts and psychological difficulties arising as Prison Service staff adjust to a whole new way of operating? I wonder about potential clashes if one group — which has been at the back end in this matter — now builds an empire and interferes in the daily lives of those in the Prison Service? How do you see these proposals playing out? Are they deliverable?

1238. Mr Masefield: Yes, they are deliverable. Currently, there is something in the order of 30 probation staff working in prison, and their roles are well defined. They are laid down under the service level agreements.

1239. You make a very good point about our staff. Without caricaturing, the average member of staff is around the age of 50. He may have 20 or 25 years’ service — sadly, they will predominantly, but not exclusively, be male. Many have a certain mindset from having served in the Maze Prison or Crumlin Road. Some are excellent at embracing the new approach to public protection and working with prisoners, while others are being given developmental and training opportunities.

1240. I certainly think that, during the transition period, there will be real value in working more closely with the probation services and getting their people to work with us. I genuinely mean that; I am not just saying it. The Committee should come to Magilligan — and I would be delighted if any Committee members took up that offer — to see the prisoner development unit. It is integrated; it has probation officers, eight Prison Service staff, Northlands drugs development workers, Alcoholics Anonymous, psychologists and a parenting class that is delivered by Barnardos. It is a genuinely multidisciplinary facility, and it works extremely well together in the delivery of the programmes. That is a model on which we can build.

1241. Mr Attwood: I am tempted to follow up Alan’s question and ask what the position of the Prison Officers’ Association is, but maybe you would decline that question. This may be deliverable, and there is not doubt that you are one of the people most likely to deliver. However, you did not answer the Chairperson’s question about resources. You said that if the Minister says that there is money in the comprehensive spending review for the proposals, then there is money. That is the answer to a slightly different question. You heard the Human Rights Commission say earlier that if there are not enough resources for the proposals the legislation should not be implemented. You may have heard NIACRO say that there is a danger that this could become a massive preventative programme. Various figures have been bandied about — £14 million has been mentioned today — and you are clearly trying to redirect some of your resources into this project. Everyone is saying that, without resources, the proposals will not be realised.

1242. This is critical, and how you answer this could be critical to how the Committee views the whole thing. Given your knowledge of all the other agencies involved, the restraints of the comprehensive spending review, the size of the prison population, and the number of prisoners who will be coming through preventative schemes of one sort or another, are you telling the Committee that you sense that the money is — or will be — available to fully deliver the proposals? That is different to what is in the comprehensive spending review or what the Minister has promised. Is it your sense that the money is going to follow this new regime?

1243. Mr Masefield: Yes, Mr Attwood.

1244. Mr Finn and I have worked very closely with, and huge respect for, our counterparts in the Northern Ireland Office who worked on the proposals. Some of the changes that they have made, not slavishly following the English Criminal Justice Act 2003 on points about dangerousness and the discretion of the judiciary, will be hugely helpful. Mr Finn has put an immense amount of work into analysing the ebb and flow of the prisoner numbers, and the costs associated with that, for each of the next 15 years. Therefore, we have done a lot of work, not all of which is necessarily apparent above the surface — nine tenths of the iceberg is below the surface, as it were — to identify, to the best of our ability, the cost and implications of the programme.

1245. The Chairperson: It must be taken into consideration that Ministers come and go.

1246. I thank you for a very interesting submission and discussion. Your two colleagues did not get the opportunity to speak, but I am sure that they made a full contribution to the written submission and I thank them for coming.

1247. Mr Masefield: Thank you.

1248. The Chairperson: I invite the representatives from the Police Service of Northern Ireland to come forward. I welcome Superintendent David Boyd, who is the head of operational policy; Mr John Connor, head of the social policy unit; Inspector Rosie Leech, from the roads policing development unit; and Inspector Gary Atkinson.

1249. Superintendent David Boyd (Police Service of Northern Ireland): Thank you for giving the PSNI the opportunity to brief the Committee on the enforcement of legislation on drinking in public places and provisions relating to quads and other vehicles causing a nuisance. First, I will set out the PSNI’s involvement in the consultation process to date and put forward the views of the PSNI top team in respect of those matters. I have prepared a short, five-minute presentation setting out those views.

1250. The PSNI were included in the working group that was set up in 2002 to review the drinking in public by-laws. During the meetings of the working group, the PSNI representative highlighted all of the issues and, as such, there was nothing new in our formal response to the consultation paper that was issued in September 2003. At the time, the service acknowledged that by-laws based around the current legislative powers could not deliver enforcement that would deter alcohol-linked antisocial behaviour on the streets and in public places. From a policing perspective, it was clear that the most effective method of controlling such behaviour required measures that could be introduced only following the passing of new primary legislation.

1251. The proposals in the initial consultation paper stated that both district councils and the police would have the power to enforce the new legislation. At the time, the command team in PSNI supported that approach. In January 2006, correspondence was received from the NIO asking us to reconsider that issue and to confirm whether we were still of the view that enforcement powers should be extended to councils. That was because of concerns around someone other than a police officer enforcing the legislation. Upon receipt of that correspondence, the opportunity was taken to have the issue raised with the PSNI command team. The PSNI’s view was that the arguments for proceeding with the legislation, as drafted in 2003, with joint council and police enforcement powers, were compelling and supported the PSNI vision of making Northern Ireland safer. Full consideration was given to proceeding on the basis that only the police should have the relevant enforcement powers. However, those arguments were outweighed by the counter-arguments supporting the contention that councils should take the lead in enforcement.

1252. Having reconsidered the matter, the PSNI continues to take the view that it would be more appropriate for councils to take the lead in enforcement in this area. The enforcement of drinking by-laws is not seen as a core policing issue, and it may be helpful for me to explain the reasons for that. The Committee will no doubt be aware that, every year, the Northern Ireland Policing Board and the Police Service publish an annual policing plan. The policing plan details the objectives set by the Secretary of State and the Policing Board and describes the performance indicators and targets relating to those objectives that the Chief Constable is accountable for. Those objectives, performance indicators and targets are set out under a number of policing domains and are intended to provide a better focus across the range of activities undertaken by the police. The objectives that are set out under each of the domains provide a balanced overview of policing, while placing the emphasis on meeting the policing needs of the public. District commanders take account of that policing plan during the preparation of local policing plans, which are produced and published separately. Local policing plans also give the opportunity for district commanders to consult with their respective district policing partnerships and others to ensure that the needs of the local communities are addressed. Two regional Assistant Chief Constables (ACCs) review the performance of the districts and district commanders to ensure that targets in the policing plan, and their respective local policing plans, are being achieved. Finally, each of the district policing partnerships (DPPs) will monitor each district’s performance through DPP meetings.

1253. During the consultation exercise for the policing plan, which was published by the Northern Ireland Policing Board in April 2007, enforcement of drinking by-laws was not identified as a policing priority. There will always be competing pressures for resource prioritisation, affecting the resource availability to any particular enforcement area. For that reason, it is important to target those areas that district commanders are being held accountable for.

1254. Currently, all district councils have by-laws that make it an offence to drink alcohol in designated areas. Those by-laws give councils, and the police, the power to take the names and addresses of offenders for prosecution proceedings, which are taken forward by the council.

1255. There is no consistency of approach as to how an area is designated and the subsequent enforcement of by-laws. Police have no power under council by-laws to remove alcohol from persons over 18. Individuals under that age are dealt with under the Confiscation of Alcohol (Young Persons) Act 1997. With regard to people drinking in designated areas, police note their names and addresses and prepare a statement of evidence, which is forwarded to the appropriate district council that decide whether to instigate proceedings.

1256. The new proposals shift the focus of the offence from consumption of alcohol in designated areas to targeting antisocial and disorderly behaviour associated with drinking. Where there is reason to believe that a person is or has been consuming alcohol in a designated place or intends to do so, it will be an offence for a person to refuse to comply with requests by a constable not to consume alcohol or not to surrender anything in his or her possession that the constable believes to be alcohol.

1257. The proposed legislation requires the surrender of alcohol. A person who refuses to comply with the requirements of an officer will commit an offence. The seizure of alcohol will be possible where the possessor has been arrested.

1258. Under the new proposals, councils will be under a statutory duty to consult with police, public and other relevant agencies before a designation order is made. In addition, there should be a robust evidence of alcohol-related nuisance or disorder with an assessment that the problem will continue unless the powers are adopted. Consultation with the local police will form an important part of that evidence-gathering assessment. The PSNI warmly welcomes that partnership approach in relation to designation of an area.

1259. The new proposals apply solely to police-only enforcement powers. The PSNI command team’s view is that councils should take the lead on enforcement as they do in other areas such as street trading, dog fouling, noise, litter and smoke-free legislation. Police will only get involved if council officials get into difficulty. We will respond and deal as appropriate — as we would with any other agency or member of the public if there was a breach of the peace or assault, for instance.

1260. There is no reason why similar arrangements cannot be put in place with the introduction of the proposed legislation. There should be a direct link between the designation of an area, the enforcement of the legislation relating to that designation and the bringing forward of a prosecution case against offenders. The PSNI welcomes any joint powers of enforcement, with district councils taking the lead and police only becoming involved in joint pro-active operations with council enforcement teams where necessary. With that joint approach, there is a potential for greater impact on the problem. There will be more people with respective powers for monitoring the situation.

1261. It was noted during the consultation period in 2003 that the majority of councils indicated that they would like a continued or strengthened enforcement role. In addition, council enforcement officers in the course of their other duties might come across breaches of the proposed legislation, and they could take the appropriate enforcement action as necessary. That may also result in limited police resources being used elsewhere.

1262. Article 68 makes provisions for the introduction of a fixed-penalty scheme. With regard to the administration of the scheme, it is envisaged that once a police officer issues a fixed-penalty notice, the administrative burden will fall mainly to the Court Service. If a person defaults on a fixed-penalty notice, the Court Service will inform the local council, which will prosecute the person for the offence. However, there is concern in the PSNI that the requirement on police officers to provide statements and attend court, etc, will be a drain on police resources and will remove officers from front-line duty.

1263. On the issue of enforcement of drinking in public places, I emphasise our view that district councils must take the lead in the enforcement of the drinking by-laws, thus ensuring full partnership in working to deal with the issue. All organisations have a role to play, and that will have the full support of the Police Service.

1264. I know that I have to comment on nuisance vehicles, but I propose that now is a good time to stop to take questions.

1265. The Chairperson: It is clear that you believe that the onus to take the lead on this issue should be the councils. You do not regard the policing of designated areas as a front-line police duty, but surely if a police officer is out on patrol and comes across that sort of situation he or she will regard it as his or her duty to act.

1266. Superintendent Boyd: That is correct, but you heard me say that I welcome joint enforcement powers, with the council taking the lead. If joint enforcement powers are established, therefore, and an officer happens upon a situation, he or she will intervene as necessary.

1267. The Chairperson: What do you think about a blanket ban on alcohol consumption in public?

1268. Superintendent Boyd: Simply, when carrying out their duties, the PSNI must comply with the Human Rights Act 1998. In doing so, our actions are legal, necessary and proportionate. Taking that into account, any such blanket ban would punish the responsible for the actions of the irresponsible. Therefore, such a ban is neither necessary nor proportionate.

1269. The proposed legislation, as it stands, allows for an officer to exercise his or her discretion. Therefore, any person who wishes to enjoy a drink in a park for example, should not be affected by the legislation, provided their actions do not amount to any sort of antisocial behaviour.

1270. Mr Weir: That point is maybe slightly misunderstood. Everyone would accept that there should be interventions when antisocial behaviour is taking place. Leaving that aside, there is an issue of whether drinking should be banned in all areas, except those that the council has deemed it permissible to drink in, rather than having a list of streets in which drinking is banned.

1271. At present, local councils have a problem trying to cover all of the areas as there is page after page of lists of streets that drinking has been banned in. I know that that was a problem last year for North Down Borough Council. That can obviously create problems for either council officials or perhaps the police, as there potentially have to be signs up in every street to which the ban applies. Without such signs, the police officers or the council officials may be unsure as to whether a particular street is a designated area.

1272. It should not be a question of whether a police officer should have discretion to intervene; any police officer should intervene in circumstances of antisocial behaviour. No one would object to a situation of a family sitting around a picnic table having a glass of wine or something of that nature; nor is any one suggesting that there should not be discretion in such circumstances.

1273. The issue is whether there should be a long list of areas in which drinking is banned, which could maybe cover three quarters of the streets in a particular town, as opposed to a general presumption that no alcohol should be consumed in any public place except those areas that councils have designated. That is the issue, rather than it being one of proportionality.

1274. Superintendent Boyd: There are issues with what has been outlined. For example, police currently go along and enforce alcohol-free zones. However, the persons involved in the drinking may simply move down the street into a nearby alleyway or another street and carry on drinking.

1275. The current proposal means that councils are under an obligation to consult with police and others such as traders and local residents to identify where the problem is. That hones the enforcement tools that are available to police and councils to deal with the issue, rather than simply implementing a blanket ban.

1276. Mr O’Dowd: Thank you for your presentation. This issue has the potential for various Departments and the PSNI to attempt to protect their resources and budgets, which is perhaps understandable. That is also the case across a range of issues.

1277. There is now a situation in which the most significant low-level nuisance and low-level crime on our streets is probably caused by alcohol. It seems to me that you are saying that the councils should take the lead on this issue.

1278. Superintendent Boyd: That is what we are saying.

1279. Mr O’Dowd: You are asking council officials to deal with drinking on our streets. Therefore, you are asking civilians to approach groups of youths who have consumed alcohol to ask them to move on. That, to me, sounds ridiculous.

1280. Superintendent Boyd: Currently council officials are asked to go into licensed premises and deal with smoke-free legislation.

1281. Mr O’Dowd: The circumstances are totally different. I worked for years as a barman, and working in a bar is not always easy. However, not for a pension would I approach a group of youths drinking on a street and ask them to move on or ask for names and addresses. What will happen is that the PSNI, when working through district policing partnerships or being contacted by local councils or local representatives, will say that drinking on streets is not its problem but the councils’. In reality, it is a low-level crime that leads to higher-level crimes. If the PSNI took a more active role against this, other crime would be reduced. You have not given me a convincing argument that councils should take the lead role in this.

1282. Superintendent Boyd: Let me explain. Before I send Inspector Atkinson out to carry out a function, I will risk-assess what the officer has to do. As his employer, I will ensure that he is adequately trained and equipped to carry out that task. He should have personal protective equipment. The PSNI says that councils should take the lead in this, that they are the employers and that they should risk-assess and train and equip their staff accordingly.

1283. Mr O’Dowd: This boils down to budgets. The PSNI has been through its budget and does not want to take on this responsibility. The PSNI is asking councils to hire a private policing service, instead of using the local police service.

1284. Superintendent Boyd: I have had the opportunity, as an operations manager in a district, of standing at DPP meetings where local councillors have stood up and asked what the police are doing about people drinking in designated areas. I have pointed out that, as it stands, the legislation provides for both police and council enforcement. I have quoted the numbers of people who have been reported to local councils and have asked the councils what they are doing about it.

1285. Mr O’Dowd: That comment is fair enough.

1286. Superintendent Boyd: We tell the council how many people we have reported to it. When we ask how many the council itself has detected, we generally receive the answer zero. The problem is that there is no consistency in the approach of councils to this issue. Some councils operate a “two strikes and you are out” rule. Offenders receive a yellow card the first time they are reported, and on the second, they are prosecuted. Other councils prosecute on the first offence.

1287. The Chairperson: There is some interference. Will members and witnesses check their mobile telephones and turn them off; they are interfering with the sound recording.

1288. Mr O’Dowd has completed his questions; I will move on to Alan McFarland.

1289. Mr McFarland: I am rarely at odds with the police. I served for four years on the Northern Ireland Policing Board when it was first set up, and fought valiant battles in setting up the ethos of policing. I am worried. The reason that this issue is being discussed has nothing to do with drinking on the street. We are not talking about groups of youths sipping sherry and discussing a play by Shakespeare. [Laughter.]

1290. That is not why this topic has come up. Rather, we have a major problem with yobbos getting tanked up and behaving antisocially. The witness will know better than anyone that antisocial behaviour has a high priority in the plans of the Chief Constable and the Policing Board. We are not discussing alcohol consumption, but antisocial behaviour. I seldom agree with the philosophy of John O’Dowd, but I do in this instance.

1291. Ms Ní Chuilín: [Inaudible.]

1292. Mr McFarland: One cannot send a council official, dressed in Robocop armour, into Bangor on a Saturday night, where 25 people are absolutely legless. He would run around saying I am Mr Jones from the council and you chaps are not supposed to be doing this. He would get absolutely panned if not killed, and then the police would be called in.

1293. I know that the police have enough difficulties in Bangor on a Saturday night. It seems strange that you are not keen, as a general psychology, to get a grip of something like that. Any member of the public will tell you that drunken youths behaving antisocially is a major headache. This is the first opportunity the PSNI have had to go and sort all these people out. I have spoken to police officers and they are dying to get a grip on it. The PSNI is as embarrassed as everyone else is at not being able to confiscate alcohol and stop them acting in an antisocial manner.

1294. Now is the opportunity for the Police Service to get to grips with the problem. I am slightly worried that responsibility for it will be passed back to councils, which are not equipped to deal with it.

1295. Superintendent Boyd: They are certainly not equipped.

1296. Mr McFarland: Councils are not equipped to deal with the problem because, by and large, people fear and respect the police. When a police officer approaches someone with a bottle, that person will show respect unless, perhaps, he or she is already too tanked up. When people are asked to move on, and they know that the police officer has the power to take the bottle from them and lock them up, they are likely to pay more attention than they would to a council official who asks them to stop their behaviour. It is psychological. I am worried that, if police start to back off in those situations, that will also have a psychological effect.

1297. The Chairperson: I must stop you there, Mr McFarland. You have made your point robustly. I would like to hear a short response from Superintendent Boyd, because that is similar to the point that was made by Mr O’Dowd.

1298. Superintendent Boyd: The proposed legislation introduces police-only powers of enforcement. The police believe that councils should lead and that there should be dual powers. Police will accompany council officials when necessary in joint, proactive operations to deal with antisocial behaviour. However, let me say this, folks; dealing with antisocial behaviour is not just about people drinking in designated areas — there are other issues connected with it, such as people urinating in the street; litter; people’s coming out of public houses when drunk and being loud, but not disorderly, and so on.

1299. Ms Ní Chuilín: Rioting is also a problem.

1300. Superintendent Boyd: My operational experience, for example in Moy where there are several pubs in a small village and many people living nearby, is that the way to deal with it is to work in partnership with others in order to ensure that hot-food bars are closed; buses and taxis are available to take people away; door staff are adequately trained; bins are provided so that people can dispose of litter; bottles are removed from people when they leave licensed premises, and so on. Therefore, a raft of measures can be put in place to deal with antisocial behaviour. The legislation is just one tool. The police believe that through joint powers, councils should lead and the police will assist.

1301. Mr McCausland: At a local level, I have as much contact with the police on antisocial behaviour as almost any other issue. There is a serious problem in North Belfast and in other constituencies, as members have indicated. I examined the questionnaire that asked people what they thought the priorities should be for policing in their areas. I asked myself whether I should put down antisocial behaviour or the drinking laws as my first priority. I found it difficult to make a choice because the two are interrelated. A large percentage of antisocial behaviour is alcohol related. The fact is that for most people, enforcement of the drinking laws is a priority, whether it is on the list or not.

1302. To return to the point that was raised earlier by my colleague, at present, the problem is that when several streets are designated — and the number of designated streets increases every two years or so — the people who cause the problem simply keep moving around the corner into the next street during the interim. Eventually, after around four years, the police might catch up with them. Is it not much simpler to have that approach, bearing in mind that there must be an element of discretion and common sense — as there is in the enforcement of any law — and that there must be special provision made for places, such as restaurants in the centre of Belfast, in which, although it is still in a public area, it would be appropriate for people to be able to sit outside under an awning, perhaps?

1303. Bearing in mind those two exceptions, the presumption should be that the streets in residential areas should be non-drinking areas. If there were a presumption that streets were generally non-drinking areas, with certain limited exemptions, would the situation not be much simpler? Problems, such as that of people ripping signs down and saying that alcohol cannot be taken from them because there is no sign, would be avoided and would save councils a fortune in putting up the signs.

1304. Superintendent Boyd: The situation would be simpler. However, how would that be perceived by members of the public? Would it be perceived that they could not go to the park on a Saturday and consume alcohol with a picnic?

1305. Mr McCausland: The issue is of common-sense enforcement. I go through parks pretty regularly, where I see lots of drinkers in corners.

1306. I have not seen many people putting up a card table and setting a bottle of vintage champagne down on it. That does not happen. There are few occasions such as Proms in the Park in most city parks. Not many people sit in Ballysillan Playing Fields having cucumber sandwiches and a glass of vintage wine. It does not happen.

1307. Superintendent Boyd: Are you not creating the problem of having to produce a list of places that fall outside the blanket ban? What would happen if, for example, a council decided to promote a community festival in a local village, such as the music festival in Warrenpoint, at which there is much drinking on the street? Would the council have to apply for an opt-out?

1308. Mr McCausland: Is it not much simpler to have certain specific exemptions that can be applied for occasionally? Most people who are plagued by the problem, and many policemen on the ground who face the difficulty of trying to enforce the laws as people dodge round corners, would say “Well done”.

1309. Superintendent Boyd: I have given my view.

1310. Mr McCausland: We will agree to differ.

1311. The Chairperson: There is a marked difference of opinion. Do any other members wish to come in on this?

1312. Dr Farry: If it were to fall to councils to enforce the legislation, would there not be a danger that the council officers would have the capacity to tackle only the more minor breaches? The greater the number of people who congregate and drink alcohol, the less likely it is that a council officer could intervene, because he or she would have to wait for the police to arrive to mount a joint operation. It is a perverse situation when minor breaches of the law are tackled rather than the more serious ones.

1313. Superintendent Boyd: I take your point. Council officials would probably be more inclined to intervene during daylight hours. However, there are joint powers and joint enforcement. The police will attend when necessary to assist council officials to tackle such situations.

1314. The Chairperson: We will leave it at that. There was a further point about nuisance vehicles. As members are familiar with the provisions in the Order and we are running out of time, just detail the main points.

1315. Superintendent Boyd: The PSNI welcomes the introduction of the legislation as it brings Northern Ireland into line with GB. This power has been available to forces there for some time. As the Committee is aware, the issue of quads and scrambler motorcycles being driven in parks and on roads, pavements and waste ground has been well documented. The problem is generally regarded as an issue of public nuisance. However, people have been tragically killed or maimed as a result of such activity.

1316. The legislation provides the police with an effective solution, namely the power to remove the vehicle, after which the behaviour will cease. In practice, the police will not seize such vehicles unless, and until, the rider has been issued with a warning for riding the vehicle in a manner that causes “alarm, distress or annoyance”. I am certain that the legislation will receive public backing, and its effectiveness has been established in Great Britain, where the problem has been almost eradicated in many areas.

1317. Inspector Rosie Leech (Police Service of Northern Ireland): Those of us who work in road-policing development see the legislation as an effective tool. We are frequently asked what the police can do about the problem, and our current powers are limited.

1318. The Chairperson: Will the legislation remedy that limitation?

1319. Inspector Leech: Yes. I want to reassure you that there is a degree of moderation and that people will not have their quad or scrambler seized if it is their first offence. A warning will be issued that will be recorded against the individual in case they are detected breaching the legislation again.

1320. The Chairperson: Do members have any further questions?

1321. Mr O’Dowd: Do you want any additional powers to address this issue? It is a difficult one to deal with and has caused problems for years.

1322. Inspector Leech: We have benefited from recent case law that declared any quads, mini motos, and so forth that are not used for agricultural or forestry purposes, to be mechanically propelled vehicles.

1323. In that way, those vehicles are brought under the umbrella of the legislation that is available to us, and would have to be insured. A separate power to deal with uninsured vehicles used on public roads is available to deal with those issues. The users of those vehicles, such as mini-motos, would not necessarily have to be causing alarm or distress. We will be pretty well covered from a legislative point of view when the power to seize uninsured vehicles is granted. The difficulties are practical ones; quad bikes and scramblers can be used in places that the police patrol car or Land Rover cannot go. We may have to work out our tactics in future; we may be looking for quads ourselves. [Laughter.]

1324. The Chairperson: There are no further questions. Thank you very much. That was a very useful session. If any other matters arise in the course of our discussion we will come back to you.

1325. Superintendent Boyd: Thank you for the opportunity to put our points of view to the Committee.

Appendix 3

Written Submissions

NIO Letter – 8 November 2007

Letter to Chair of the Ad Hoc Committee

Alban Maginness, MLA
Chair of the Ad Hoc Committee
Room 155
Parliament Buildings
Stormont
BELFAST
BT4 3XX

Dear

Alcohol Consumption in Designated Public Places:
Articles 67 – 71 of the Draft Criminal Justice Order (Northern Ireland) 2007

I understand that an Ad Hoc Committee has been set up to consider the above draft Order in Council, which contains legislative provisions dealing with drinking in public. As you will be aware policy responsibility for this matter currently rests with my Department, with the legislative provisions contained in the draft Criminal Justice Order in Council given the nature of the strengthened measures and the exercise of police powers.

As part of the evidence gathering process, officials from my Department have been asked to brief Committee members on the new drinking in public provisions this Wednesday, 5 December. In advance of this, Committee members may find it useful to have an overview of the policy measures, consultation undertaken and the underpinning rationale. A short briefing paper is attached as an Appendix for this purpose.

Finally, you may wish to note that the Social Development Committee was provided with briefing on the proposed changes. It has noted the proposals and agreed to consider the matter further once the outcome of consultation on the draft Order is known.

Yours

Margaret Ritchie MLA

Minister for Social Development

Appendix

Currently all 26 district councils have bye-laws that make it an offence to drink alcohol in designated public places. The police, as well as councils, have the power to take the names and addresses of offenders for prosecution proceedings by councils. In practice this function is, by and large, carried out by the police. On conviction, offenders are liable to a fine of up to £500.

Drinking in Public Review and Consultation

Many district councils criticised the bye-laws as inadequate to control nuisance drinking in public places and the anti-social behaviour that goes with it. As a result a public review of the bye-laws was initiated in 2003 and consulted on. In total there were 36 responses, including 20 district councils, 7 district policing partnerships and PSNI representatives.

This led to calls for the introduction of tougher measures, to provide a swift and immediate deterrent to the problem. The majority of respondents favoured designation of known public areas, with strong support for the proposed measures. There was no significant demand for a blanket ban on drinking in public. There was also strong support for powers to seize both open and sealed containers of alcohol and the introduction of a fixed penalty scheme. However, these measures went well beyond the scope of the current bye-law making powers, involving reserved matters that are the responsibility of the Northern Ireland Office.

Further consultation was undertaken with district councils on the proposed detail of the policy measures. Of the 19 that responded the majority broadly supported or welcomed the introduction of strengthened measures to deal with drinking in public. Comments were made on the council’s role in enforcement, the need for a higher fixed penalty and the application of the measures to those under 18. These were taken account of in finalising the policy.

New Measures

Under the new measures, as contained in the draft legislation, an offence would be committed, not simply by drinking alcohol in a designated area, but by failing to comply with a constable’s request to stop drinking or to surrender alcohol.

The police would initially be responsible for enforcing the new regime, challenging people who are drinking in a designated area, confiscating alcohol (arresting if necessary), issuing fixed penalty notices and initiating prosecution (by taking names and addresses). In practice it is anticipated that the exercise of the powers should largely be limited to the removal of alcohol, dealing with the problem at the source and on the spot. Councils would continue to designate areas and take forward prosecutions. They would also administer new fixed penalty notices, likely to be £50, given by the police.

PCSO and Council Role

Police Community Support Officers (recently created for Northern Ireland on the basis of the England and Wales model) could have certain powers in due course, but this would need further engagement with PSNI. The allocation of enforcement powers to district councils would require further legislation and could be considered in detail once decisions have been taken in relation to local government structures and wider licensing functions in the context of the Review of Public Administration. At all times the police would be in charge where public disorder is taking place.

Designation

District councils, as at present, would continue to designate places to which the public have access and in which the consumption of alcohol is subject to special controls. They could only designate those public places where there is a recognised problem of anti-social public drinking. The streets or public places in the immediate vicinity could also be designated where there is a perceived risk of displacement of the problem. Councils would be under a statutory obligation to liaise with the police and other interested parties prior to designating areas, ensuring that designation is both effective and targeted. In light of this councils would no longer be required to conform the designated areas with the Department.

Offences

Where it is reasonably believed that a person is, has been, or intends to consume alcohol in a designated public place, it would be an offence to refuse to comply with a request to stop drinking, or surrender, alcohol (or reasonably believed to be alcohol).

This is a change from existing bye-laws under which it is an offence to consume alcohol in a designated area. However, the need to observe a person consuming alcohol has been a serious problem for the police in enforcing the current bye-laws. As the aim is to tackle public nuisance or disorder, the new law would give the police a discretionary power to deal with this but to leave unchallenged those who are drinking responsibly in a designated area, e.g. at a family picnic. As with the existing bye-laws the maximum penalty for refusing to comply with a constable’s request would be £500.

Penalties

There would be a power to issue a fixed penalty notice to a person who commits the offence of refusing to comply with a request to stop drinking or to surrender alcohol. The fixed penalty would initially be set at £50 (10% of a level 2 fine), although it would be possible to increase this. This would be in line with that applying in similar circumstances in England and Wales. Alternatively, a person who commits an offence would be liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500).

Confiscation

The draft legislation requires the surrender, and allows the disposal, of anything reasonably believed to be alcohol or a container for alcohol. A person who refuses to comply with this requirement would commit an offence. Confiscation would be possible where the possessor had been arrested.

Power of arrest

New arrest provisions came into operation on 1 March 2007 under changes introduced by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007. This would allow police officers to arrest for any offence, including the new drinking in public offence, subject to two elements:

(i) a person’s involvement, suspected involvement or attempted involvement in the commission of a criminal offence, and

(ii) reasonable grounds for believing that the person’s arrest is necessary.

Young persons

The measures outlined above would apply generally to all age groups. However, on commencement the lower age limit for fixed penalties would be 16 years. Enabling legislative provisions would allow the age limit to be reduced and, where a penalty notice is given to a person under 16, to make a parent or guardian liable for payment of the penalty.

Impact on existing bye-laws

It is intended that councils should be given up to 3 years (from commencement of the provisions) to introduce the new designation procedures before any current bye-laws would lapse.

Probation Board Northern Ireland

10 December 2007

Mr Kevin Shiels
Clerk to the Ad Hoc Committee on Criminal Justice Order 
Room 205, Parliament Buildings 
Stormont 
BELFAST 
BT4 3XX

Dear Kevin

Re: Written Submission To The Ad Hoc Committee On Draft Criminal 
Justice (Northern Ireland) Order 2007

1. Introduction

The Probation Board is a non-departmental public body that is appointed by the Secretary of State. The functions of the Probation Board include carrying out risk assessments and providing reports to the courts, supervising offenders in the community and custody, and supporting schemes that address offending behaviour. Probation Board staff help prevent re-offending by assessing offenders, challenging their offending, seeking to change their behaviour and, helping to manage their risk so as to protect the public. The Probation Board delivers 6,200 reports to courts in the year and supervises at any one time 3,700 offenders.

The Board employs 380 staff deployed across Northern Ireland in 36 offices/ reporting centres. Its budget is currently around £16m per annum.

The Probation Board is preparing its Corporate Plan 2008-2011 and has been consulting widely on its ideas. These include a central role for PBNI in the management of offenders from pre-sentence by the courts, planning their sentence and ensuring it is carried out, during and after custody – this will deliver “end-to-end” offender management in Northern Ireland.

2. Draft Criminal Justice (Northern Ireland) Order 2007

PBNI welcomes, therefore, the broad policy thrust of this draft legislation, namely:

• the emphasis on increasing public protection
• new sentences for dangerous violent and sexual offenders where release from custody is dependant upon verified reduction of risk
• supervision of offenders on licence post release, to address offending behaviour and reduce likelihood of re-offending
• reserving prison places for those who merit them and those from whom the public requires protection, and providing alternatives to custody for those who default in fines
• provision of additional powers to strengthen management of offenders in the community, such as electronic monitoring.

PBNI, along with other criminal justice organisations, has worked closely with NIO both at the policy development stage and in the development of instructions to counsel in respect of the draft legislation.

Implementation of the draft legislation will, of course, require a significantly increased contribution from PBNI and we recognise that the legislation will present us with major challenges. But we believe that – working in conjunction with its statutory, community and voluntary partners – PBNI can build on its existing, evidenced based record to help achieve more effective management of offenders in Northern Ireland.

Yours sincerely

RB Spence
Chairman

Criminal Justice Inspection
Northern Ireland

Mr Kevin Shiels
Committee Clerk
Ad Hoc Committee
Room 155
Parliament Buildings 29 November 2007
Stormont
BT4 3XX

Consideration of the Draft Criminal Justice
(Northern Ireland) Order 2007

Criminal Justice Inspection Northern Ireland (CJI) welcomes the opportunity to comment on the draft legislation. Several of the topics covered by the draft Order have been the subject of recent inspections and recommendations by the Inspectorate, and others are matters on which CJI has work currently in hand.

In general we welcome the draft Order, and the only provision on which we have doubts is that relating to the Juvenile Justice Centre (s.95 below).

Part 2 of the Order deals with sentencing, and in particular the new sentencing arrangements for dangerous and sexual offenders, including extended and indeterminate sentences, release on licence, electronic monitoring and the establishment of Parole Commissioners. CJI has published three reports which made recommendations in this field:

• an initial report on the MASRAM arrangements (March 2005);
• a specific report on the management of sex offenders in light of the tragic murder of Mrs Attracta Harron (December 2006); and
• a follow-up report verifying that recommendations from the earlier reports had been acted upon (November 2007).

The provisions in the draft Order – the new sentencing powers and the ending of automatic 50% remission – are in accordance with CJI’s recommendations and CJI welcomes them. The powers provide for a wide exercise of judicial discretion, which CJI supports.

CJI’s main concern is not about the draft legislation as such, but about its resource implications. It is essential that the new regime should be resourced adequately. There is a danger that attention will focus on the prison estate, where numbers will increase by perhaps 100 to 150 over a period of years. But no less important will be the increased demand on the Probation Board, on whom will fall the main burden of assessing risks, advising the Parole Commissioners and managing offenders released under licence. Recent experience in England and Wales suggests that Northern Ireland needs to plan carefully in order to deliver extended and indeterminate public protection sentences. Since the scope for indeterminate sentences was increased in England and Wales, the total number of prisoners with these sentences has risen from 5,475 to 9,500. Many of the prisoners have not been able to access the programmes they need to persuade the Parole Board they no longer represent a danger; leading in turn to human rights challenges in the High Court. Unless the system is properly resourced there is the danger that it will run into similar difficulties in Northern Ireland. Protection from dangerous offenders is at the forefront of the public’s priorities.

s.46 provides for the courts to be able to impose non-custodial sentences for non-payment of fines. CJI welcomes this provision. It is important that fines should be enforced, so that their credibility as a sanction is preserved, but the current Northern Ireland practice of imposing very short periods of imprisonment is ineffective as a sanction and disruptive to the prison system. In 2006 defaulters amounted to some 30 per cent of admissions. Having to cope with fine defaulters alongside more serious offenders complicates prison management and takes up disproportionate time for the officers.

Under s.48 the Life Sentence Review Commissioners are to be renamed the Parole Commissioners for Northern Ireland. They will have much more extensive responsibilities under the new sentencing regime. CJI has just, under s.45 of the Justice and Security Act 2007, been given responsibility for inspecting the Life Sentence Review Commissioners, and we assume that the Order entails that that responsibility will continue in relation to the Parole Commissioners. It is important that the Parole Commissioners should be included in the scope of CJI’s work.

Part 3 of the draft Order relates to another recommendation from the original MASRAM report, namely that the arrangements for the management of dangerous and sexual offenders should be placed on a statutory basis, as they are in England and Wales, with a duty on each of the agencies concerned to co-operate and share information. This will be achieved by means of statutory guidance issued by the Secretary of State under s.51. The guidance will also, we understand, lead to the establishment of a standing inter-agency Public Protection Team, strengthening the position of the team which currently reports to the Sex Offender Strategic Management Committee (NISOSMC). CJI very much welcomes these proposals.

Part 4 of the Order concerns Road Traffic Offences. In CJI’s October 2007 report on the enforcement functions of the Department of the Environment we noted a number of problems, particularly concerning cross-border enforcement of penalties and enforcement against foreign registered vehicles in Northern Ireland. It is probably outwith the scope of the Order to do anything to strengthen the DOE’s hand in relation to these matters. CJI is currently completing an inspection of Roads Policing, which has involved collaboration with the Garda Siochana Inspectorate to give us comprehensive coverage of roads policing on the border, and we expect to make recommendations early next year that will help to improve the management of accidents and the ability of the police to deny the use of the roads to criminals.

In Part 5, ss.92 and 93 contain some minor technical provisions relating to ASBOs. CJI is currently conducting a review of the use of ASBOs, on which we hope to report early next year.

We are also currently inspecting the Juvenile Justice Centre (JJC) and have just inspected Hydebank Wood. In the light of our inspections the proposed s.95, if we have understood it correctly, seems to us surprising and inappropriate. It provides that a court shall send a 17 year old to the JJC (rather than to the Young Offenders Centre at Hydebank Wood) if it has been notified by the Secretary of State that there is no suitable accommodation available at the YOC. Inspectors believe that on the contrary the presumption should be that 17 year old males should be sent to the JJC unless either there is no room for them there or they are so difficult to manage that the JJC cannot cope with them. Females under 18 should not, in any circumstances that Inspectors can envisage, be sent to Ash House. There should be a presumption against any juveniles being sent to Hydebank Wood, where Inspectors regard the regime on offer as gravely inadequate, but we acknowledge that there will be exceptions to that rule. We believe the legislation should reflect that thinking.

Finally, there are certain detailed amendments to the legislation governing CJI which we would like to propose at some stage, but we recognise that it may not be possible to incorporate them in this Order. I attach for reference the annex to the submission which CJI made to the Committee which is currently considering the devolution of policing and criminal justice.

We should be glad to expand upon any of these points to the Committee if it wishes.

Yours sincerely

Kit Chivers

Chief Inspector of Criminal Justice in Northern Ireland

Annex to CJI’s submission to the Committee which is considering the devolution of policing and criminal justice

Criminal Justice Inspection

Annex: Points to be raised with the Executive and the Assembly in due course

Although the remit of CJI is broadly satisfactory we propose that the Executive should call for an independent quinquennial review of CJI’s functions and performance to be conducted. This would enable the Assembly to take a fresh view of what it wanted from the Inspectorate in the new dispensation and how the Inspectorate should be resourced to meet those requirements. Two slight modifications of the remit might be considered at that stage:

1. Inspection of the PSNI

Under CJI’s founding statute, the Justice (Northern Ireland) Act 2002,, CJI has a remit to inspect the PSNI, but it is constrained by the following provision (Schedule 8.8):

1. Before an inspection of the Police Service of Northern Ireland … is carried out under s.46, the Chief Inspector must inform … Her Majesty’s Inspectors of Constabulary.

2. If those Inspectors notify the Chief Inspector that they wish to carry out the inspection, the Chief Inspector must delegate its carrying out to them ….

3. If those Inspectors do not notify the Chief Inspector that they wish to carry out the inspection, the Chief Inspector must, before the inspection or review is carried out, consult the Secretary of State with a view to obtaining his approval of the inspection which it is proposed to carry out.

Once responsibility for the PSNI transfers to the Assembly it would seem right that the relationship between CJI and HM Inspectorate of Constabulary should be the same as that between CJI and other England and Wales Inspectorates, namely that they inspect in Northern Ireland as agents for CJI, which will be the Assembly’s own designated Inspectorate in the area of policing and criminal justice. CJI has always worked closely in partnership with HMIC on policing issues, and it would continue to depend on HMIC for its expertise and its ability to provide benchmarking with police forces in England and Wales. HMIC also conducts ‘Best Value’ reviews of Policing Authorities in England and Wales, and it would be useful if CJI could be authorised to inspect the work of the Policing Board and District Policing Partnerships similarly.

2. Reviews of individual cases

Under the Act, CJI is not allowed to review individual cases, and that is a useful protection for CJI, as it prevents Inspectors being drawn into dealing with complaints from members of the public. However, in the nature of CJI’s work it has to review individual cases on file when it is inspecting an agency. It is accepted that that does not infringe the Act, and that the important point is that CJI collates and anonymises the information and does not refer to individual cases in its reports.

Very occasionally it would be useful for CJI to be able to report on a specific case. HM Crown Prosecution Service Inspectorate has been asked by the Attorney General to review the handling of certain cases which gave rise to grave public concern (e.g. the aborted Jubilee Line Extension trial) and HM Inspectorate of Probation in England and Wales has several times reported on the circumstances of serious further offences committed by offenders released under licence. CJI recommended in relation to the case of Trevor Hamilton that in the most serious cases in Northern Ireland the Serious Case Review should be conducted independently by CJI rather than by the agencies concerned. That would require a permissive power for CJI to conduct such reviews at the request of the Minister.

The planning process

CJI prepares a programme of work each year which it submits to the Secretary of State in the form of a Business Plan for his formal approval. Every three years it also submits a Corporate Plan looking three years ahead on a more provisional basis. The Minister of Justice will take over responsibility for approving those plans. There is extensive consultation in the preparation of the programme, culminating in the annual CJI Stakeholder Conference, which is attended by the agencies and voluntary organisations, politicians, academics and other interested parties. The Minister, through the agencies of the criminal justice system, will have several opportunities to make an input to the plans before they reach the Stakeholder Conference. The relevant Committee of the Assembly may wish to consider how it would like to make an input to the process too.

Resourcing of CJI

Under the Act, the Chief Inspector is appointed by the Secretary of State, and CJI receives an annual grant from the NIO out of which its salaries and expenses are paid. Staff of CJI are employees of the Chief Inspector and are not civil servants, though they are on comparable terms and their pay is controlled by the NIO. CJI’s budget in the current year is £1.4 million. In addition to the Chief Inspector and Deputy Chief Inspector there are six Inspectors and another seven supporting staff. Part of the budget is used to repay other Inspectorates, such as HM Inspectorate of Prisons, who come over to Northern Ireland to inspect as agents for CJI. It will fall to the Minister, if he is in place by then, to appoint a new Chief Inspector when the present incumbent’s contract expires on 3 August 2008.

CJI has recently been invited to take on new responsibilities as part of the UK’s National Preventive Mechanism under the Optional Protocol to the international Convention against Torture. This, together with the new demands which we expect will be placed on the Inspectorate by the Assembly, may have implications for the future resourcing of CJI. However CJI is committed to operating in the most cost-effective possible way, and it will do everything it can to absorb costs and mitigate the burden placed on the agencies by co-operating with other inspection and audit bodies, such as the Human Rights Commission, the Commissioner for Children and Young People, the Regulation and Quality Improvement Authority and the Northern Ireland Audit Office.

Publication of reports

CJI is required by the Act to submit its reports in draft to the Secretary of State, who presents them to Parliament before they are published. Under devolution we would suggest that reports should in principle be presented by the Chief Inspector direct to the Assembly, though normal courtesy would require that the Chief Inspector should give the Minister advance sight of them in confidence before presenting them. The provisions of the Act were designed to ensure that the Secretary of State could control publication and could withhold reports to protect the safety of individuals or in the public interest. CJI would submit that those safeguards are not longer necessary or appropriate. There is no danger to individual safety arising from CJI’s reports, which never refer to individuals, and there is no imaginable public interest in suppressing any of them. This change would strengthen the perceived independence of the Inspectorate.

The requirement for presentation to Parliament prior to publication has meant that CJI is unable to publish during the long Parliamentary summer recess, which can lead to reports being unhelpfully delayed. CJI would propose that, if the Assembly agrees, it should be allowed to submit reports and publish them at any time, whether or not the Assembly is in session.

Management of the criminal justice system

CJI believes strongly that policing and criminal justice should be brought together in a single Ministry, with joint Ministers or junior and senior Ministers as necessary. For reasons which are set out in the inspection report on the PPS which CJI issued on 8 August 2007 the Public Prosecution Service should be funded by and should report to that Ministry, and its professional independence should be safeguarded by emphasising the statutory position of the Director of Public Prosecutions and making the PPS a stand-alone non-ministerial Government Department, not by any separation of funding and accountability.

A unified Ministry would make for a strong, unified Criminal Justice Board, with responsibility for the planning and management of the criminal justice system. At present the Northern Ireland Criminal Justice Board is consultative, not executive, and in the view of the Inspectorate the doctrine of the independence of the respective criminal justice agencies is allowed to militate against effective planning and management. At present CJI has no access to the papers of the CJB, nor does it inspect the Northern Ireland Office itself, though it inspects its Executive Agencies. Although it would not be appropriate for CJI to comment on or second-guess the policy advice which officials provide to the Minister, we would suggest that executive operations of the Ministry (such as its management of Community Safety Partnerships and its sponsorship of the voluntary sector) should be open to scrutiny.

Other organisational matters

The Criminal Justice Review of 2000 envisaged that the Probation Board might become an Executive Agency following devolution. We would support such a move, but it would be important that some of the expertise of the current Board should be retained in the form of non-executive appointments to the Agency Management Board.

CJI has reported on the relationship between Community Safety Partnerships and District Policing Partnerships. We believe that there will be scope for the Assembly to take a fresh look at the appropriate structure in the context of the Review of Public Administration.

CJI reported recently (July 2007) on the management of complaints in the criminal justice system. We propose that following devolution there should be a rationalisation of the arrangements (except, at this stage, for complaints against the police) whereby the first level of complaint handling should be internal and the second level should be independent investigation by the Assembly Ombudsman.

Criminal Justice Inspection Northern Ireland
14 Great Victoria Street
Belfast
BT2 7BA

028 9025 8000
www.cjini.org August 2007

Life Sentence Review Commissioners

It is proposed in the draft Criminal Justice Order that the Life Sentence Review Commissioners (LSRC), renamed the Parole Commissioners for Northern Ireland, will perform similar functions in relation to those sentenced to indeterminate public protection sentences (IPPS) and extended public protection sentences (EPPS) as they currently do in relation to life sentenced prisoners. At the core of these functions lie decisions as to whether or not to direct the release of a prisoner on the basis that he/she does not pose a risk of serious harm to the public and as to whether a prisoner who has been released on licence should be recalled on the basis that the risk of serious harm posed by the licensee has become more than minimal.

The LSRC have no collective view of the appropriateness or efficacy of the proposed sentences. The LSRC have made submissions to Government in respect of the draft legislation and the rules to be made under it but these have been limited to making the procedures as effective as possible in the light of the LSRC experience in dealing with cases under the Life Sentences Order and the LSRC Rules. The LSRC have also had contact with the NIO in relation to the resources the Parole Commissioners will need in order to perform their functions under both the Life Sentences Order and the Criminal Justice Order, if enacted.

In my statutory annual report to the Secretary of State for 2007 I said that it seems inevitable that whenever the legislation introducing IPPSs and EPPSs comes into force there will be a significant increase in prison numbers and much greater pressure on the facilities for prisoner rehabilitation and post release supervision. I also pointed out that failure to make sufficient resources available would result in the development of a vicious circle, which I described as follows:

“- prisoners being inadequately prepared for release

- panels not giving release directions because prisoners have been inadequately prepared or because of concern as to the effectiveness of poorly resourced post-release supervision arrangements

- further reduction in preparation and post-release supervision capacity because resources have been dissipated in keeping prisoners in prison

and so on”.

In Wells –v- The Parole Board [2007] EWHC 1835 the Queen’s Bench Divisional Court held that, irrespective of resource difficulties, where a prisoner is sentenced to an IPPS measures to allow and encourage the prisoner to progress towards release after his/her tariff has expired must be taken. Logically, this ruling would also be applicable to prisoners serving EPPSs.

Rehabilitation work with prisoners is extremely demanding of resources, particularly in relation to the deployment of psychologists and probation officers. Prisoner testing in Northern Ireland is inhibited by the absence of an open prison and LSRC panels have been even more heavily dependent on the views of experts than their equivalents in England and Wales. The only criterion against which release is judged by the LSRC, or will be judged by the Parole Commissioners if the draft Order is passed into law, is public safety. A prisoner who does not meet, or is not enabled to meet, the requirement of minimal risk will not have his or her release directed by the Commissioners. Thus, the Commissioners will be unable to ameliorate resource problems by substituting a less exacting criterion.

The proposed legislation will pose a significant resource problem for the Northern Ireland Assembly if and when criminal justice is devolved. My point is that that problem is not going to be capable of resolution by skimping on rehabilitation work. Apart from the unlawfulness of such an approach in the light of Wells, it would not achieve any significant saving if the inevitable consequence were to be the indefinite prolongation of the incarceration of prisoners.

Peter Smith QC
Chairman
Life Sentence Review Commissioners

7th December 2007.

Paper from Department of the Environment

DOE and PSNI officials have worked with the NIO in bringing forward the Road Traffic Offences now set out at Part 4 of the draft Criminal Justice Order.

Most of these provisions replicate measures from GB’s Road Safety Act 2006 and would have been included in the Department’s Road Traffic (NI) Order 2007 but for the lack of time for public consultation in Northern Ireland and the need to meet the Parliamentary time-table for the Order.

The provisions are largely amending legislation and, as such, their effect is not immediately obvious without referencing the existing legislation which is being amended. Consequently, Departmental officials accompanied by PSNI will take the opportunity to explain the Road Traffic Offences contained in the draft Order and endeavour to answer any questions from the Committee.

This will involve a more detailed explanation of the following provisions:

Article 53 - Causing death, or grievous bodily injury by careless driving

• A new offence of causing death or grievous bodily injury by careless driving; triable either on indictment or summarily and carrying a maximum of 5 years imprisonment on indictment.

Article 54 - Causing death by driving: unlicensed, disqualified or uninsured drivers

• Anyone convicted of driving while disqualified, unlicensed or uninsured, whose vehicle was involved in a collision that resulted in death, should be guilty of a new offence carrying a maximum penalty of 2 years imprisonment.

Article 55 - Speed Assessment Equipment Detection Devices

• To make it an offence to carry certain Speed Enforcement Detection Devices in a motor vehicle.

Article 56 - Power of police to stop a vehicle

• To increase the penalty for failure to stop when required by a constable, from a level 3 fine to a level 5 fine.

Article 57 - Furious driving

• To allow disqualification and endorsement penalties to apply following conviction for the offence of “wanton and furious driving”.

Article 58 - Breath specimens at the roadside

• To provide the police with powers to require specimens of breath at the roadside or in hospital.

Articles 59 and 60 - Alcohol Ignition Interlocks

• To allow the courts the power to offer those offenders convicted of drink driving offences the opportunity to participate in ‘alcohol ignition interlock’ programmes.

Article 61 - Statutory definition of Careless Driving

• In order to define driving which falls below the standard of the competent and careful driver, it is proposed that the offence of driving without due care or reasonable consideration (“careless driving”) should be defined in more detail in statute.

Article 62 - Failure to allow a specimen to be tested

• This article allows prosecution for causing death or grievous bodily injury by careless driving whilst under the influence of drink or drugs where, without reasonable excuse, the person fails to consent to a laboratory blood test. Failure to give permission can be an alternative verdict.

Article 63 - Manslaughter

• When the offence of manslaughter is charged in a case of bad driving, provision is now made to allow for alternative verdicts when the manslaughter offence is not proved.

Articles 64 and 65 - Vehicles causing alarm, distress or annoyance

• To provide the police with the power to seize motor vehicles causing alarm, distress or annoyance.

John McMullan
Road Transport Legislation Branch
Department of the Environment

Paper from Northern Ireland Association for the Care and Resettlement of Offenders

What we Support:

Supervised Activity Orders

It is right that for those who default with regard to fines imposed by the courts that an alternative to custody must be available. Whilst the practical concern is that the numbers of fine defaulters in prison is a burden to the prison system, the more principled point is that the offenders offence did not attract a prison sentence in the first place and so prison is an inappropriate default. It is important that those who sentence have good information at the time of sentencing as to the financial circumstances of the offender.

Programme delivery in prisons

We very much welcome the necessity for prisoners to receive the programmes that the court requires and or programmes where need is assessed once committed. We recognise that this will be a challenge for the NIPS but we would support the right of prisoners to challenge extension of their sentence where programmes have not been made available-this legislation will require NIPS to work routinely delivering on court and Parole Commissioners expectations.

Focus on supporting prisoners post release in the community.

The requirement on a range of agencies to co-operate in the support of these individuals post release is absolutely critical. NIACRO contends that offenders are citizens first and that they have a right of access to the same public services that any citizen has. It is inappropriate that government agencies can absolve themselves from delivering services because a person is in or has been in prison. Without proper access to housing, benefits medical services and vocation training opportunities we are not acting responsibly to support resettlement and thereby reduce the likelihood of decreasing re-offending rates and levels of victimisation.

Development of the role of Independent Parole Commission

NIACRO welcomes the new role of the Independent Parole Commission realising the significant work load that it will now assume. It will be very important that it is adequately resourced to ensure that its processes do not become a cause of delay and frustration to those in the system.

Discretion for the judiciary

Given the evidence from England and Wales it appears that the fact that the Northern Ireland legislation provides for discretion is to be welcomed. It will be important to monitor the use of discretion over time to ensure that it has the intended positive effect that we are assuming and that if not this can be appropriately addressed.

Youth Justice Custody

NIACRO welcome the creation of powers to allow children age 17 to be accommodated in the Juvenile Justice Centre but would want this strengthened to a presumption that all under 18s - children should be there unless there is compelling evidence that it is an unsuitable placement.

Resources for good bail information

NIACRO has long argued that robust Bail decisions must emanate from good and timely Bail information. It will be important that the agencies named in the legislation as having a duty to cooperate will also engage at this point. Again it is critical that resources to provide this service to a high standard across Northern Ireland are made available.

Presumption as to the use of community disposals

It is important that there is a view in favour of community sentencing. Given its relative success in comparison to reducing recidivism and its relatively lesser cost it needs to be promoted and appropriately resourced. The use of custody must be kept for serious offenders who require to be held out of the community for its protection – however the harmful effects of custody, the potential loss of accommodation, the disruption to benefits and medical support all require to be attended to promptly on release if greater dysfunction is not to occur. It is NIACRO’s view that professionally managed community sentencing has successful outcomes in terms of reducing re offending, is less of a cost to the public purse and keeps the positive community supports in place which contribute to better citizenship.

What Provisions Cause us Concern

Will the financial and human resources be place to deliver what is required for?

Extended custodial sentences/indeterminate custodial sentences will incur significant additional costs. We are concerned that unless the lack of basic skills which prisoners’ evidence can be addressed then the reliance on cognitive programmes will be undermined. Therefore resources are required to support the development of basic skills as well as offender management programmes to address offending behaviour.

That there is still the likelihood that individuals who have committed low level crime will go to prison

For short term thereby reducing the impact of prison and the fact that it needs to be kept for the serious few. Short term sentences do not work; they create a revolving door effect – evidencing the return of numbers of offenders whose dysfunctional lives are made chaotic by returns to prison and subsequent living in accommodation with interrupted benefits and medical support.

NIACRO is very concerned that we have lost three cornerstones that helped in the management of offenders;

• Removal of any form of remission;
• The requirement for consent and
• The opportunity to early discharge of a community supervision order

All of these measures were helpful to motivate and engage offenders in working to address their behaviours .Without them their management is likely to be made more difficult for both NIPS and PBNI.

Video links

Delays in the system that provide for constant remanding and the extended use of video linking need to be urgently addressed. This is the ongoing scandal of our system in Northern Ireland and affects both victims and offenders. NIACRO objects to the use of video links for sentencing believing that it is important that in a small jurisdiction we can insure that offenders can receive their sentence in person.

Test purchasing

NIACRO recognises the need to reduce the inappropriate alcohol dependency culture in Northern Ireland and supports measures to cut the supply to those under age. However we are very concerned at the proposal to test purchase using children to entrap sellers. We believe better education and community supports are a much more positive way to address this issue over the long term.

Conclusion

Risk aversion

NIACRO is concerned that this legislation will evolve into a massively expensive crime prevention measure and that people will be kept in prison because of what they might do rather than what crimes they have actually committed. It is generally acknowledged that the penal system in England and Wales has reached crisis point. We do not need to replicate this within the jurisdiction of Northern Ireland. We need to develop a culture and practice of using prison only for serious and dangerous offenders whilst simultaneously developing community sentences with greater criminal justice and non-criminal justice involvement so increasing our community’s confidence in the Criminal Justice System’s ability to manage offenders appropriately and safely in the communities from which they come.

Outline of Evidence to the Ad Hoc Committee
on the Proposed Draft Criminal Justice 
(NI) Order 2007

Indeterminate Sentencing

The Order, under Article 4 would create an indeterminate custodial sentence for public protection if the offender is convicted of a serious sexual or violent offence and it is considered by the court that the offender poses a significant risk of serious harm by committing further specified offences. The list of specified offences is found in Schedule 1 of the draft order.

Indeterminate sentencing was introduced in England and Wales through the Criminal Justice Act 2003. The Commission notes the extra safeguards that are introduced in this Order that are not to be found in the Criminal Justice Act 2003 - the minimum two year tariff and the introduction of extended custodial sentences – we are aware that both these measures are attempts to ensure that those prosecuted for relatively minor offences are not subject to indeterminate custodial sentences.

International Standards

no one is to be subject to inhuman, cruel or degrading treatment on punishment – Article 3 of European Convention on Human Rights given domestic effect by Human Rights Act 1998

“all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of that person” – Article 10 of International Covenant on Civil and Political Rights

Concerns

• The very concept of indeterminate sentences because they would appear to be punishing people for what they might do as well as what they already have done.
• The NIO has failed in introducing this legislation, to refer to evidence that indicates how indeterminate custodial sentences are working in England and Wales in terms of protecting the public, reducing the possibility of re-offending whilst of course protecting the fundamental human rights of prisoners as well as victims. The Commission is certainly aware of reports that suggest very strongly the system is not working well in England and Wales.
• The Order’s address of the assessment of dangerousness would appear to leave much to the discretion of the sentencing judge. Further clarification is needed on the assessment of dangerousness. The Commission would urge that the courts are provided with a consistent assessment process for all cases where an indeterminate sentence is considered.
• Even with the minimum two year tariff, the list of specified serious offences for which indeterminate sentence would be given is broad and would not appear to ensure that indeterminate sentencing would in fact only be used for the most dangerous offences. Under Article 3 of the Order the definition of “serious harm” is “death or serious personal injury, whether physical or psychological” but the list of offences in Schedule 1 range from rape and manslaughter to burglary with intent to do unlawful damage to a building or anything in it.
• The Commission is very seriously concerned with the possible effect on prisoners of this aspect of the Order. In particular we believe it is vital to consider the psychological impact on prisoners who are in state custody for an indeterminate period. Indeed the Commission is already concerned about numbers of people in need of therapeutic care that end up in criminal justice system.
• In a High court decision of 31 July two prisoners won rulings that it was unlawful to hold them when they could not access courses designed to address their behaviour and help them prove they were fit for release. Verdict concluded that there “was a general and systemic failure” in the application of the Indeterminate Sentence for Public Protection. Government is appealing this decision. Such mistakes should not be repeated.

Test Purchase Power

provides for a “test purchase power” which inserts a new power (Article 60(a)) into existing licensing law (the Licensing (Northern Ireland) Order 1996). The test purchase power allows police officers to identify bars and off licences selling alcohol to minors and then “set up” the commission of an offence by arranging for a minor to purchase alcohol.

International Standards

The United Nations Convention on the Rights of the Child, by which the United Kingdom is bound, states

in all actions concerning children the best interests of the child shall be a primary consideration (Article 3);

no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation (Article 16);

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare (Article 36).

Concerns

• We do not consider it to be in the best interests of any child to be used to promote the commission of a criminal offence in an entrapment situation. What possible benefit can there be to the child to be involved in such a way?
• We do not believe that the requirement for the parent to consent can meet the best interests of the child. In what circumstance could it be in the child’s best interest for the parent to consent on their behalf?
• We do not understand why it is necessary for the police to have this power rather than mounting their own undercover operations in order to witness the commission of an offence. The explanatory document which accompanies the draft order provides no rationale for the need to introduce this power.
• No information has been provided in the explanatory document as to how the police will identify the child they are to use to entrap the licensee. The concern is that it will be the vulnerable child who is known to the police and who is asked to take part in the test purchase power to avoid a caution or an ASBO. What other possible inducement might there be for a parent to consent to their child being used in this way if not to avoid some sort of prosecution?
• The Commission is concerned about the risks to the safety and welfare of the child who does assist the police in the entrapment of a licensee. It is not difficult to see how the child’s involvement might well lead to threats or risk of physical violence either from those who have been charged as a result of their involvement or from those in the community who may become aware of the child’s assistance to the police.
• The NIO have concluded that this power will have no adverse differential impact between the various section 75 groups. Given the very obvious risks to the child and the clear potential for breach of the UK’s commitments under international human rights law, the Commission cannot endorse the NIO’s conclusion that this power ought not to be submitted to a full Equality Impact Assessment under Section 75 of the Northern Ireland Act 1998.

Live Links

The draft order proposes to extend the power to substitute personal attendance by the defendant in the court by live link to prison to two further categories of proceedings:

sentencing hearings (article 80) and

appeals under the Criminal Appeal Act (article 82).

In respect of sentencing hearings the direction of appearance by live link can only be made by the court with the consent of the offender.

This is not the case in respect of a direction relating to a criminal appeal in the Court of Appeal. While the live link direction cannot be made without the parties to the appeal having an opportunity to make representations, the consent of the offender is not required. A defendant could consequently be denied the opportunity to be present in court in person for their own appeal.

Concerns

• Little evidence is provided by way of rationale for this important interference with the long standing safeguards surrounding the right to a fair trial. The NIO cite two reasons: improved security of prisoners and reduction of delays in court hearings relating to transport of prisoners to the Court of Appeal. No statistics are provided regarding either breaches of prisoner security or court delays.

Live Links and the Vulnerable Accused

In addition, Article 81 also deals with conditions to be met for the giving of evidence by live link by the vulnerable accused. The definition of vulnerable accused is:

under 18yrs: based on intellectual ability and social functioning

over 18yrs: based on mental disorder or significant impairment of intelligence and social function.

Concerns

• While in certain instances attendance by a live link may be in the interests of the vulnerable accused the Commission considers that in other circumstances being alone in a room with a live link may only serve to exacerbate the inability of the accused to fully appreciate the nature of the proceedings. We would like to see more thought being given to a range of measures to support the vulnerable accused.
• It is difficult to avoid the conclusion that this is merely a cost saving exercise. While the Commission certainly does not advocate the unnecessary expenditure of public funds the extension of live links to such core court hearings, in some instances without the consent of the defendant, may not in all circumstances serve the interests of justice nor indeed foster respect for the criminal justice system.

Anti-Social Behaviour Orders

Applications for interim orders (already in existence), are to be possible without notice being given to the defendant. This proposal merely serves to exacerbate the Commission’s existing concerns regarding the granting of ASBOs.

ASBOs were introduced in Northern Ireland in 2004 by way of the Anti Social Behaviour (Northern Ireland) Order. Provision was made for the granting of interim orders. Unlike in England and Wales, however[1], no specific provision was made in Northern Ireland for the granting of such interim orders without notice.

The Commission acknowledges the existence of precedents for ex parte proceedings in a range of areas of law. What makes ASBOs different is that ASBO proceedings blur the division between civil and criminal law.

Concerns

• The odds are very heavily stacked against the person against whom the order is sought. Hearsay evidence is admissible and the normal criminal standard of proof does not apply. As of October 2006 less than 1% of applications for ASBOs had been turned down in England and Wales[2]. While such statistics are not available for NI we have no reason to consider the situation here to be any different. Without an opportunity to present arguments at an interim hearing the likelihood of an inappropriate ASBO being granted are greatly increased.
• Breach of an interim order carries the same penalties as breach of a full order.
• In a judicial review decision in 2005[3] the issue of the power of a Magistrate to grant interim ASBOs without notice was considered. A resident magistrate’s refusal to grant such an order without notice in the absence of a specific legislative power was upheld.
• The decision of Girvan J reflects the many concerns that the NIHRC has regarding the use of ASBOs, in particular, the use of an apparently civil procedure which can give rise to a potentially criminal liability. Girvan considered that the nature of ASBO proceedings increases the imperative against such orders being available on an ex parte basis. Despite the clear concerns expressed by Mr Justice Girvan in the JR about the inappropriateness of no notice interim orders in the particular context of ASBO proceedings and the advice of the independent statutory HRC, the NIO has proceeded with this proposed extension without any cogent policy rationale or statistical basis.
• No evidence has been produced that the need to serve interim orders has proved problematic. One would have thought that interference with fundamental rules of natural justice (audi alteram partem) would have required a demonstration of need. However, the NIO has not sought to demonstrate how the inability to apply for ex parte interim orders fails to protect the public in certain instances.
• Indeed the NIO would not be able to demonstrate such need as they are unable to say how many of the 62 ASBOs granted to date in NI started out as interim orders. This information is not monitored. Nor can they say whether an interim order has ever been overturned in NI.
• There has been no proper evaluation of the use of ASBOs since their introduction in 2004. The NIO and the Criminal Justice Inspection have jointly commissioned such an evaluation which we understand will be published in the next few months. Seeking this power is premature in advance of the publication of that evaluation.

Supervised Activity Orders

The Commission welcomes the statement from the NIO that the proposals are aimed at “ensuring that custody is only used for those offenders who merit it”. In particular it sees as a positive development, given its own investigations into female prisoners at Hydebank Wood, that Supervised Activity Orders will be used instead of custody for fine defaulters. We are strongly of the view that this option should be maximised and that the necessary resources are in place to ensure that appropriate activities with a restorative element are made available.

January 2008

Northern Ireland Human Rights Commission
Temple Court, 39 North Street
Belfast BT1 1NA
Tel. (028) 9024 3987
Textphone (028) 9024 9066
Fax (028) 9024 7844
E-mail information@nihrc.org
Website www.nihrc.org

info@nihrc.org

[1] See Magistrates’ Court (Anti Social Behaviour Orders) Rules 2002, Rule 5.

[2] see Jim Skelsey : “The Use of ASBOs as part of Local Government Policy on Community Safety” 26/10/06paper for BSB solicitors. Check crimereduction.gov.uk/asbos2.htm

[3] In The High Court Of Justice In Northern Ireland Queen’s Bench Division (Judicial Review) In The Matter of an Application by Northern Ireland Housing Executive for Judicial Review of the Decision of Mrs Kelly, Resident Magistrate, dated 28 April 2005 [2005] NIQB 71, Delivered 23/11/2005

Draft Criminal Justice 
Northern Ireland Order 2008

Ad Hoc Committee of the Northern Ireland Assembly

Addendum
Evidence of the Vulnerable Accused

Article 81
Evidence of the Vulnerable Accused

1. Article 81 of the draft order proposes amendments to the Criminal Evidence (Northern Ireland) Order in respect of the use of live link for evidence of the “vulnerable accused”.

2. The draft order proposes that for both adult and minor vulnerable accused the court may give a live link direction “on the application of the accused” (Article 21 A(2)) where certain conditions are met.

3. This addendum addresses specifically concerns relating to the vulnerable accused aged under 18 years. For the purposes of this draft order the vulnerable accused under 18 years are defined in article 21 A (4) as follows:

“Where the accused is aged under 18 when the application is made, the conditions are that

(a) his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning; and

(b) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise)”

4. The NIO Equality Screening Forms which accompany the draft order (p.49) provide the following rationale for the introduction of this power:

“This provision brings us into compliance with the obligations under the European Court of Human Rights. The judgment of the ECtHR in the case of SC v UK found that an 11 year old with a cognitive age of only 6-8 years had not had a fair trial because he could not effectively participate in the trial as he had a very low understanding about the proceedings and their consequences. Giving evidence via a live link from a comfortable room in the courthouse, away from the formality of the courtroom itself, may be less distressing and difficult than giving evidence in the courtroom. The provision will ensure that a vulnerable defendant receives a fair trial by allowing them to fully and effectively participate in the proceedings.”

5. The NIHRC cannot agree with the NIO conclusion in the Equality Screening Forms that this proposal brings the state into compliance with its obligations under the European Convention on Human Rights.

6. The case of SC v the UK (European Court of Human Rights, 15 June 2004) involved an 11 year-old child who was committed to the Crown Court for trial. He had been involved in a street robbery with a 14 year-old. At the pre-trial hearing, the child’s counsel argued that the trial should be stopped because of the boy’s low attention span and his educational age. A consultant clinical psychologist had assessed the boy as having the cognitive abilities of a child between the ages of six years, two months and eight years, two months. The judge refused, saying the trial would be informal and that the child appeared to be “a ‘streetwise’ child, whose intellectual impairment is largely the result of spending two of his critical years outside the education system”.

7. The European Court of Human Rights found that the child’s right to a fair trial under Article 6 of the ECHR had been breached. It stated:

“ The Court considers that, when the decision is taken to deal with a child, such as the applicant, who risks not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at determining the child’s best interests and those of the community, it is essential that he be tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedure accordingly.”

8. The Commission considers that providing a live link in some instances for such a vulnerable young defendant may well have value as one of a package of measures which should be made available to meet the range of needs of such defendants. In itself, however, a live link may only serve to further increase barriers to understanding and participation in the trial. It certainly does not meet the requirements of the ECtHR decision that a specialist tribunal with adapted procedures be available for such defendants.

Northern Ireland Prison Service

Part 1: A Service in Transition

• In the past the Northern Ireland Prison Service was focused largely on security, in the management of paramilitary prisoners.
• No recruitment of main grade officers for 10 years - average age around 50.
• Our statement of purpose refers explicitly to public protection.
• Our focus moving to resettlement and offender management.
• The Criminal Justice Order adds momentum.
• Some offenders, who can be the more dangerous, cannot now be compelled to address their offending behaviour.
• These new public protection sentences will incentivise offenders to engage with NIPS and PBNI to reduce the risk they pose.
• Agreement between NIPS management and the POA on the need to develop our staff for active engagement with prisoners including programme facilitation.
• Since 2001 a 62% increase in the prison population; on average, over the last six years the prison population has increased over 10% per annum; remands constitute 35%, while the life sentenced population has doubled from 88 prisoners in 2001 to 173 now.
• Shortcomings in accommodation and facilities:
• The Service has a single cell ethos, yet some 300 prisoners share a cell with another prisoner, in Maghaberry. (Most prisoners at Magilligan have no direct access to in-cell sanitation.)
• Maghaberry was built to accommodate 450 prisoners and today holds over 800 - the facilities have not kept pace.
• Prisons’ Minister Paul Goggins announced on 18 December a comprehensive plan for the provision of adult male prison places in Northern Ireland over the next 10-15 years:
• An immediate investment of £70m over the next three years to provide 400 extra places at Magilligan and Maghaberry Prisons.
• Plan for a brand new 800 place prison on the site of the existing Magilligan Prison. Detailed business case being worked up now.
• Also an interim report on proposals for women in custody (and the community) to Ministers by end February.

Part 2: The Impact of the Criminal Justice Order

Objectives

• Objective to focus prison on those who need it most - longer sentences for serious offenders, alternatives to custody for those not a risk to others.
• The legislation is designed to enhance the protection given to the public through the introduction of a parole system and the extension of supervision on release.
• The introduction of parole:
• ensures dangerous offenders are not released automatically, but instead are only considered for release after a comprehensive risk assessment;
• encourages offenders to engage with Prison staff and address their offending behaviour;
• provides a mechanism for the recall to prison of offenders after their release.
• Protection of the public, through working with prisoners and reducing the risks is what the Northern Ireland Prison Service strives for.

Challenges for NIPS

• The forthcoming Criminal Justice (NI) Order will, over time, have an impact on the prison population. Estimates of the net impact vary between an additional 60 prisoners to 120 or so (by 2020).
• Clearly it is difficult to estimate with precision as a number of factors are in play, including crime rates, police clear-up rates, and the effectiveness of a range of measures and initiatives.
• The increase will be directly as a result of high risk, dangerous violent or sexual offenders spending longer time in prison.

Programme Challenges

• The Service will be required by the legislation to provide additional suitable offending behaviour programmes, education and training for prisoners with a public protection sentence.
• In addition to existing expenditure, we plan to invest a further £4.7 million over the next three financial years to implement the strategy. This will include investment in education and psychology services to recruit and train new staff to undertake risk assessments, provide programmes and work directly with dangerous offenders to reduce their risk, and to put the necessary structures in place to manage the process.
• Psychologists play an important role, (though the last two recruitment campaigns for additional Forensic Psychologists have been unsuccessful in filling all vacancies); multi-disciplinary approach essential.
• Drawing directly now on experience in England and Wales to plan our build-up.
• We have also established a strategic joint steering group to focus on offender behavioural programmes, with PBNI and other partners.
• Important to work closely with NI Departments and agencies, especially DHSSPS, DEL and DENI; healthcare transfer will assist.
• Many of our prisoners have some form of mental health problem or personality disorder; (estimated that up to 70% may have such a disorder). This presents a challenge for the system in terms of the regime to manage their behaviour, provide appropriate care and reduce the risks they pose before and after release.
• This is exacerbated by the differences in mental health legislation between here and Great Britain. The Northern Ireland Affairs Committee (NIAC) has recommended that consideration be given to amending the legislation.
• Bamford Committee has recommended a new fully secure mental health facility, as did NIAC.
• The Prison Service will be required to prepare additional reports and undertake more detailed risk assessments on prisoners to meet the requirements of the Parole Commissioners
• The Prison Service has developed an excellent understanding of what the LSRC requires and we have made significant progress in arrangements for life sentenced prisoners, including dedicated accommodation at Maghaberry.
• After committal a life sentence plan is prepared following a multi-disciplinary meeting, informed by comprehensive risk assessment and other information such as the pre-sentence report. It will set out what work the prisoner should undertake to reduce his or her risk, including education, vocational training, treatment for substance misuse and offending behaviour programmes. The plan is reviewed on a regular basis by a multi-disciplinary team.
• In the final years pre-tariff a life sentence prisoner, may be tested in the community, through accompanied and unaccompanied temporary release before transferring to the Prisoner Assessment Unit (on the Crumlin Road site).
• We would anticipate introducing similar arrangements to manage those prisoners with a public protection sentence.

Other opportunities for NIPS

• Other elements in the Order are also relevant and welcome:
• expansion of live video links;
• diversionary powers, including tagging, curfew and supervised activity orders;
• statutory backing for and expansion of MASRAM;
• increased offences for trafficking into prison.

Statistical Annex

Prison Population (at 3 January 2008)

% Remand = 35.1%

Total Prison Service Budget 2007/08 = £132m

What we already know about offenders:

• 70% adult male offenders have numeracy/literacy deficiencies
• 60% at least of prisoners diagnosed as suffering from mental health problems (and many have other health deficits)
• 60% have substance misuse problems - 90% for females
• 50% have financial difficulties
• 50% are unemployed on committal
• 33% were in care as a child
• 50% of prisoners will have accommodation concerns on release
• 50% of prisoners will experience problems within their community because of their offending
• 45% of all offenders are reconvicted within 2 yrs of release

Factors which help offenders desist from criminal activity when released:

• Employment reduces the risk of re-offending by between a third and a half;
• Basic skills learning can contribute to a reduction in re-offending of around 12 per cent;
• Maintaining family contact is associated with successful resettlement. Those prisoners who had at least one regular visit from family or partners were twice as likely to have an employment, education or training place arranged on release and three times more likely to have accommodation arranged as those who did not receive any visits;
• The volume of offences by drug dependent offenders cut by 70% while in treatment (NACRO).

What is the NIPS investment:

• Health –
• Health expenditure across the three establishments for 2006/07 was £6m
• Drugs and alcohol expenditure across the three establishments for 2006/07 was £650k.
• Education – 3 education managers; 5 senior teachers, 14 full-time teachers and 26 part-time teachers
• Expenditure across the three establishments for 2006/07 was £1.7m.
• Psychological Support – 1 Chief Psychologist, 4 Principal Psychologists and 12 psychologist posts
• Expenditure across the Service for 2007/08 will amount to £774,000.
• Vocational Training – 3 VT Managers; 31 VT Instructors (21 officers and 10 civilians)
• Expenditure on workshops across the 3 establishments for 2006/07 was £1.9m.
• Chaplains – 18 part-time chaplains from across the 5 mainstream churches provide spiritual and pastoral care to prisoners and their families on a daily basis
• Expenditure on average £300k per annum.
• Families – the total amount spent on family policies and strategies was £1.2m
• £168k total for transport and assisted visits for 2006/07
• In prison Probation support – 3 Probation Managers; Probation Officers etc
• £1.3m per annum
• In order to accommodate the new sentencing options for dangerous violent and sexual offenders in the CJO (NI) 2007; in addition to our normal expenditure the NIPS anticipates spending a further 4.74m over the next three financial years.

NIPS and PBNI have identified eight key Pathways to successful resettlement:

Accommodation: placing the hard to reach in particular those dangerous and violent offenders and sex offenders who may continue to pose substantial public risk as well as those who find themselves homeless on release.

Education, Training and Employment: re-focusing regimes to ensure we achieve tangible outcomes – job opportunities, work experience, placements. Training which will enhance life skills and widen employment choices.

Health, mental and physical: Improving links with health services during custody and with the appropriate support services in community in readiness to receive individuals with a personality disorder.

Drugs and Alcohol: Supporting offenders in identifying and addressing addictions and developing addiction management plans which link with pre-release programmes and ongoing support in the community.

Finance, Benefit and Debt: Ongoing provision of benefit and debt management advice during custody and post-release.

Children and Families: To encourage family involvement at various stages of the prisoner’s resettlement process and to contribute to reducing intergenerational offending.

Attitudes and behaviour: To protect the public and to reduce the risk of re-offending by addressing offender attitudes and behaviour. Ensure victims interests are taken into account in resettlement and re-integration.

Offender management and social inclusion: To ensure that the complex needs of the prisoner population are met through effective reintegration and resettlement of all prisoners regardless of their community or religious background; and by engaging with community workers, and by drawing on restorative justice.

Supplementary Note of 14 January from the 
Northern Ireland Prison Service on Matters 
Raised at the Oral Hearing on the Criminal
Justice Order on 9 January

The Director of the Northern Ireland Prison Service undertook to provide the Committee, as soon as practical, with additional information on three matters:

(a) the reduction in the number of juveniles (those under 18) held in Hydebank Wood Young Offenders Centre and Prison,

(b) assessments of the proportion of the prison population suffering from mental health issues,

(c) information about the funding to transfer from NIPS to the HPSS when the transfer of lead responsibility for prisoner healthcare is finalised.

Juvenile Committals

The tables below show the number of juvenile committals (ie. under 18 when first received) to Hydebank Wood between January 2006 and January 2008.

The number of juveniles committed to Hydebank Wood has decreased significantly over the last two years; from around 25 committals per month to less than 5 committals per month currently.

The vast bulk of committals are males.

During 2006 there were a total of 179 juvenile male committals; an average of almost 15 per month. In 2007 this had dropped to 107 committals; an average of almost 9 per month. The average for the last six months has been less than 6 committals per month

During 2006 there were a total of 11 juvenile female committals; an average of almost 1 per month. In 2007 this had dropped to 3 committals; an average of almost 0.25 per month.

Mental Health Issues

Attached are various assessments of the proportion of prisoners with mental health issues both in Northern Ireland and elsewhere. The statistics demonstrate that approximately 60-65% of prisoners are assessed as having a personality disorder, of whom a significant minority will have significant mental illnesses.

The Funding Arrangements for the Transfer of Prisoner Healthcare as presented to the Health Committee on 23 November

On 23 November, the Committee questioned Michael McGimpsey, Dr Andrew McCormick and Dr Ian McMaster on the transfer of funding in connection with the transfer of lead responsibility for healthcare in prisons.

On behalf of the Minister, Dr McMaster clarified that an initial total of £5.46m was specified between NIPS and the DHSSPS; in-year discussions during 2007/08 “increased the revenue by £277,000, identifying shortfalls for things like cognitive behavioural therapy and increasing pharmacy costs”.

The initial £5.46m covered the full range of health issues, of which mental health provision was only one. For clarity, this sum was more than sufficient to meet 2007/08 costs (the outturn will actually be less) and the additional £277,000 for future years included issues such as pay inflation.

As Dr McCormick pointed out, the need for additional mental health development funding was quantified at around £450,000 a year. He clarified that the former Minister of Health had set some money aside previously within the departmental budget for prisoner healthcare which could be used, and that the Northern Ireland Prison Service had undertaken to transfer an additional annual sum of £225,000 ringfenced for prisoner mental health developments.

The Committee was advised by DHSSPS officials, as the NIPS Director pointed out to the Criminal Justice Order Ad Hoc Committee, that although the prisoner population on any given day would be around 1400-1500 prisoners in a year the turnover would be over 6000. In the words of Dr McMaster “a lot of the problems are caused by people moving from prison back out into the community and then back into prison”.

There will be a benefit to the wider community through enhanced arrangements for discharge from prison and for improved treatment of mental health issues in prison.

Annex

Assessments of the Proportion of 
Prisoners with Mental Health Issues 
both in Northern Ireland and Elsewhere

a) WHO Guide to ‘Health in Prisons’ (2007)

• 4% of male and female prisoners have psychotic illnesses,
• 10% (men) and 12% (women) have major depression,
• 42% (women) to 65% (men) have a personality disorder.

Research (Blaauw, 1998) showed that 89% of all prisoners have depressive symtoms.

b) ‘Prison Health in Scotland’ (December 2007)

• 14% of prisoners had a history of psychiatric disorder,
• 7% had a previous history of self-harm including attempted suicide.

c) Prison Reform Trust ‘Factfile’ (December 2007)

• 72% (male) and 70% (female) sentenced prisoners suffer from two or more mental health disorders,
• 20% have four of the five major mental health disorders,
• 64% (male) and 50% (female) sentenced prisoners have a personality disorder,
• 7% (male) and 14% (female) sentenced prisoners have a psychotic disorder.

d) Bamford Report (chapter on Prisons in Forensic report 2007)

• Blaauw in 2004 estimated 63% of prisoners had a psychiatric disorder, compared with 16% of the general population,
• “the evidence suggests if anything the figure in NI is even higher”.

e) Evidence to NI Affairs Committee, October 2007

• Dr Philip McClements: “65% of prisoners probably have a mental health problem,”
• Dr Ian Bownes: “I would not dispute the figure of 65%.....roughly 25% [of whom] having significant mental illness within the terms of the Mental Health Order, that is significant levels of anxiety, depression and a major mental illness such as schizophrenia.”

Research and Library Services

Research Paper

3 December 2007

The Draft Criminal Justice (NI) Order 2007

Claire Cassidy and Carol Doherty
(Research Officers)

This paper is intended as a brief introduction to the draft Criminal Justice Order 2007. It gives an overview of the ongoing consultation process and highlights potential issues for further consideration.

Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public

Introduction

This paper sets out the following information:

1. Overview of the draft Criminal Justice (NI) Order 2007

2. Sentencing

3. Risk Assessment and Management

4. Road Traffic Offences

5. Miscellaneous and Supplementary–

5.1 Purchase and consumption of alcohol

5.2 Penalties

5.3 Other areas covered

6. Conclusion

This briefing is intended as an overview of the draft Order and is not a fully comprehensive analysis of each article. It highlights some of the issues for consideration which have been raised in consultation documents as well as issues of public interest.

1. Overview of the draft Criminal Justice (NI) Order 2007

The draft Order is divided into six distinct parts. After an Introductory Part the Order deals with, Sentencing Powers (Part 2); Risk Assessment and Management (Part 3); Road Traffic Offences (Part 4); Miscellaneous and Supplementary Provisions (Part 5); and a Supplementary Part (Part 6).[1]

The new proposals within the draft Criminal Justice (NI) Order have been introduced to increase public protection in a number of ways:

(i) By introducing a new sentencing structure for dangerous sexual and violent offences and post-release supervision

(ii) By tackling knife crime

(iii) Creating new powers for the control of drinking in public places

(iv) By re-evaluating curfew powers and introducing electronic monitoring

(v) By understanding the purpose of custodial sentencing and ensuring that it is used only for offenders who merit it

The proposed legislation would create public protection sentences for serious sexual offenders and violent offenders and establish post-release supervision on 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.[2]

2. Sentencing

Part 2 of the Order contains proposals for changes to the range of sentences available to the courts, with particular reference to the introduction of new measures for the sentencing and assessment of dangerous, violent and sexual offenders and the creation of public protection sentences and post-release supervision.

A distinction has been made between these offenders and the management of low-risk offenders in the community by way of electronic tagging, expansion of curfew orders, and the creation of a non-custodial alternative for fine default.[3]

2.1 Dangerous Offenders

Dangerous offenders are considered in Part 2 of the draft Order. An offender is assessed as dangerous[4] 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.[5] Serious harm means death or serious personal injury whether physical or psychological.[6] 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.[7]

(a) Sentencing for Dangerous Offenders

Article 4 creates an indeterminate custodial sentence (ICS) for public protection. An ICS allows the court to consider cases where a sentence under Article 5 (i.e. an extended custodial sentence) would not be adequate for the purposes of protecting the public from serious harm from further offences 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. When imposing an ICS the court must specify the minimum period that will be served.[8] After this minimum period has been served, release will depend on the recommendation of the Parole Commissioners.[9] This Article also states that the court cannot use the ICS in place of the life sentence when an offender could be liable to a life sentence, the court must pass a discretionary life sentence if the seriousness of the offence requires it.

Article 5 of the draft Order creates an extended custodial sentence (ECS) for public protection. 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. This could be an extension period of up to 5 years for violent offenders and eight years for sexual offenders.[10]

A dangerous 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 ECS.

A dangerous offender who has been convicted of an offence which 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.

(b) Release on Licence for dangerous offenders

Part 2 of the draft Order sets out the release provisions for an ICS and an ECS for dangerous offenders. For an ICS the relevant part is the minimum period specified by the court.[11] For an ECS, the relevant part is one half of the appropriate custodial term as directed by the court.

Once a prisoner has served the relevant part of their sentence and the Parole Commissioners have directed their release, the Secretary of State (SoS) must release the prisoner on licence. It is worthy of note that the Parole Commissioners cannot direct the prisoner’s release unless the SoS has referred the case and the Commissioners are satisfied that it is no longer necessary for the prisoner to be confined.[12] Release from the public protection sentences will involve the creation of a new independent body of Parole Commissioners for NI.[13]

Sentencing and release on licence for dangerous offenders is considered in Table 1

Table 1 Sentencing for Dangerous Offenders

2.2 Custodial sentences

The general provisions for custodial sentences are contained in Part 2 Chapter 2 of the draft Order.[14] It defines custodial sentencing for offenders over the age of 21 years as a “sentence of imprisonment”[15] and for offenders under the age of 21 as:[16]

(i) a sentence of imprisonment for a term of more than 4 years;

(ii) a sentence of detention in a young offenders centre

(iii) a sentence of detention under Article 45(1) or (2) of the Criminal Justice (Children) (NI) Order 1998[17]

(iv) an order under Article 39 of that Order sending the offender to a juvenile justice centre;[18]

(v) an order under Article 44A of that Order sending the offender to secure accommodation

The chapter includes:

(a) Restrictions on imposing discretionary custodial sentences[19]

(b) Length of discretionary custodial sentences[20]

(c) Length of custodial periods[21]

(d) Procedural requirements for custodial sentences[22]

(e) Additional requirements in the case of mentally disordered offenders[23]

(f) Disclosure of pre-sentence reports[24]

For the purposes of legislative consolidation, Chapter 2 replicates some of the provisions from the Criminal Justice (NI) Order 1996.[25]

2.3 Release on Licence

Provisions for release on licence are contained in Chapter 3 of the draft Order. Offenders serving a determinate custodial sentence[26], also known as a fixed-term prisoner are outlined in the draft Order. Those offenders serving a determinate sentence are released after serving a requisite custodial period. This requisite custodial period will be specified by the court.[27] For prison sentences of less than 12 months, the court will set licence conditions; for longer sentences the SoS will set licence conditions taking into consideration the court’s recommendations.[28]

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 half-way point and remove automatic 50% remission.[29]

The NIO Review of Sentencing raised some points for consideration for discretionary release:

There are two main areas where a system of discretionary release here might have advantages. In the current absence of a system for the loss of remission for disciplinary infractions, this might be seen as filling a significant gap. While each establishment already operates a progressive regime which rewards constructive behaviour, a system of discretionary release might give prisoners an incentive to behave better in prison and to take steps to readdress their offending behaviour.

The second advantage is that it would permit prisoners who have not made progress in prison to be kept away from the public for a longer period of time. This would be particularly relevant in relation to dangerous offenders.[30]

Another important point which the NIO Review of Sentencing highlighted was the degree to which the period in custody could be varied. It was suggested this system could result in less certainty about the period that a prisoner would spend in prison, which may have an impact on public confidence.[31]

2.4 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.[32] 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[33] will allow for the effective monitoring of curfews set for certain offenders.[34]

During the Review of the Criminal Justice System in Northern Ireland (2000), there were some suggestions that electronic tagging should be introduced in Northern Ireland. It was acknowledged in the Review that there may be some benefits to this technique in certain circumstances, particularly where the alternative might be imprisonment. However the Review stated there would be human rights implications that would need to be considered, adding that its use in certain circumstances in NI might have the effect of putting offenders at risk:[35]

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. We are also aware that private contractors in England and Wales have been used to run electronic monitoring schemes, an approach that would need careful consideration in the Northern Ireland context.

The new proposals set out in the draft Order provide the Secretary of State with a power to release early a standard determinate prisoner subject to curfew and electronic monitoring arrangements. Release under such circumstances will be subject to strict conditions and can only occur towards the end of the sentence.[36]2.5 Supervised Activity Orders

Chapter 5 of the draft Order creates a Supervisory Activity Order for the court’s consideration, for cases of fine default, instead of a short period in custody. Under this new provision the court will be able to impose a community-based alternative for non-payment of a fine instead of a period in prison.[37]

This new arrangement for fine default has been welcomed by the Criminal Justice Inspection NI, who state that the current practice of imposing very short periods of imprisonment is an ineffective use of prison resources:[38]

It is important that fines should be enforced, so that their credibility as a sanction is preserved, but the current Northern Ireland practice of imposing very short periods of imprisonment is ineffective as a sanction and disruptive to the prison system. In 2006 defaulters amounted to some 30 per cent of admissions. Having to cope with fine defaulters alongside more serious offenders complicates prison management and takes up disproportionate time for the officers.

Further support for this new provision is also shown in the Review of the Sentencing Framework in Northern Ireland carried out in 2005. During consultation, many respondents strongly expressed the view that custody should not be used for fine default. Other points for consideration include:

• Consideration should be given to the enforcement of community based activities. For example in Scotland activity is determined by social services and may consist of social education, financial management, or unpaid work in the community.[39]
• Ongoing review of these activities may be necessary to assess how effective they are as a deterrent/punishment for the offence in question.
• Supervised Activity Orders may also have an adverse effect on resources of the organisation taking responsibility. For example if the local police are responsible for the supervision of fine defaulters, more man power may be needed- Resource assessment.

2.6 Parole Commissioners

The new provisions contained within chapter 6 rename the current Life Sentence Review Commissioners as the Parole Commissioners for Northern Ireland.[40] Parole Commissioners will assess how suitable dangerous offenders are for release into the community and they will also review decisions of recalling licensed prisoners to custody.[41]

At the moment the Probation Board Northern Ireland (PBNI) is consulting on its Corporate Plan for 2008-2011[42], with a closing date of 11 January 2008 for all responses. The draft consultation document outlines how the PBNI plans to introduce all of the provisions contained in the new Criminal Justice Order, one such provision being the creation of the Parole Commissioners.

With an increase in the remit of the Parole Commissioner to incorporate public protection sentences, consideration may need to be given to resource allocation.

3. Risk Assessment and Management

The Review of the Sentencing Framework in NI, highlighted the relevance of Risk management and assessment in the new provisions for NI. It outlines the importance of post-release aspects of sentencing as they apply to dangerous offenders. 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.[43]

Article 51 of the draft Order outlines guidance to agencies on assessing and managing certain risks to the public.[44] The Secretary of State may issue guidance to agencies on the discharge of any of their functions connected with assessing and managing risks. This does not add to existing statutory powers for individual agencies but rather places the emphasis on maximising the effectiveness of their existing statutory functions through multi-agency working.[45]

• Should individual agencies have increased statutory power dependent on the role they play in exercising public protection?

4. Road Traffic

The draft Order contains new powers to address three areas of road traffic law. These are:[46]

• Bad driving
• Drink driving, and
• Police powers.

Within the area of “bad driving”, a new definition of “careless driving”[47] is included and also a new offence of “causing death, or grievous bodily injury by careless driving”[48] is introduced. This section also introduces more severe penalties for unlicensed, disqualified or uninsured drivers who cause death by driving.[49]

The area of “drink driving” is also addressed in the draft Order and includes tighter laws on failing to allow specimens to be tested, police powers to requiring breath specimens and regulations regarding ‘alcohol ignition interlock’[50] programmes.[51] Finally, the draft Order creates a series of police powers to seize vehicles causing alarm, distress or annoyance and to regulate the use of devices used by some motorists to avoid speed detection.[52]

The NIO carried out a consultation on Road Traffic and Driver Disqualification[53] between November 2006 and January 2007. The consultation contained 15 proposals for modifying the law relating to motoring offences, and for the powers of the court in relation to driver disqualification.[54]

The proposals in the consultation were designed to replicate measures already in place in England and Wales, including those recently introduced in the Road Safety Act 2006.[55]

The NIO received general support from organisations who responded to the consultation although some issues were raised.[56]

• Should there be a proposal to reduce the maximum alcohol level for drivers?[57]
• How is the alcohol ignition interlock system monitored? Is there evidence for its function as an effective deterrent?
• A number of respondents voiced concerns over more engineering work being carried out to make roads safer.[58]
• There was disappointment expressed regarding the absence of a proposal to introduce a 20mph default speed limit for community streets.[59]

5. Miscellaneous and Supplementary

5.1 Purchase and consumption of alcohol

A “test purchases of alcohol” power is to be created, to allow police officers to identify bars and off-licences selling alcohol to individuals under 18.[60]

These test purchases would enable a constable[61] acting in the course of his duty, to send a person under the age of 18 into licensed premises, to attempt a purchase of intoxicating liquor. This new power would allow for licensed premises to be subject to observation and would establish whether or not sale of liquor has occurred to an underage individual.

• Is this sufficient deterrent for prevention of underage sale of liquor or are further measures necessary?
• Should further thought be given to the ethical considerations involved in such a scheme, both from the young person’s perspective and also from the licensed premises being tested?
• Will the testing of licensed premises be carried out on a random basis or should testing develop an approach which targets those areas which have been identified as having under-age youth drinking or anti-social behaviour issues?

Powers are also created to deal with the consumption or possession of alcohol in designated public places particularly where there is a problem of anti-social behaviour associated with drinking alcohol.[62] These public places will be designated by District Councils.[63] An offence would be committed if a person failed to comply with a constable’s request not to drink alcohol or to surrender it.[64]

Currently all 26 district councils have bye-laws that make it an offence to drink alcohol in designated public places.[65] These bye-laws currently operate by giving the police and councils the power to take the names and addresses of offenders. Councils are then responsible for prosecution proceedings.[66]

In 2003 concerns were raised by several district councils regarding the apparent increase in anti-social behaviour associated with the consumption of intoxicating liquor in public places.[67] A working group was established to review the operation of drinking in public bye-laws. It examined the bye-laws regulating the consumption of intoxicating liquor in public places as well as the anti-social behaviour that may be part of that activity.[68]

The majority of views received as a result of the subsequent consultation exercise supported the measures now being proposed in the draft Order. However the Department of Social Development commented that there was no significant demand for a blanket ban on drinking in public.[69]

Further issues for consideration:

• Should further consideration be given, now or in the future, to a blanket ban on alcohol in public places rather than limited to the “designated public places” as outlined in article 67 of the draft Order?
• How realistic would such a ban be in relation to implementation and maintenance of such a ban?
• Are there sufficient resources to enforce such a ban adequately?

5.2 Penalties

Article 89 of the draft Order[70] extends the maximum penalties for certain offences which include possession, manufacturing or selling of knives or offensive weapons. These include offences relating to crossbows; possessing an offensive weapon; a number of offences around the manufacture, sale or unlawful marketing of knives; and selling a knife to a person under the age of 18.

In July 2006 David Hanson MP, Minister for Criminal Justice launched a public consultation paper “The Law on Knives in Northern Ireland”.[71] The consultation sought views on tackling knife crime and preventing the emergence of a knife culture in NI.

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.[72]

A number of concerns arose from the consultation in relation to young people and knives. These are outlined below.[73]

• Violence, and its causes, must be addressed generally in order to prevent a knife culture in NI.
• Is there a need for youth education about knife crime and a general “raising of awareness” within schools and families about this type of crime?
• Should further research be conducted to assess the attitudes of young people to knife crime?
• Could a licensing regime of certain weapons help to prevent knife crime? For example a mandatory scheme or a voluntary scheme.
• Further consideration should be given to the control of sale and availability of knives.

5.3 Other areas covered

Other areas covered under Miscellaneous and Supplementary include:

(i) Prisons

(ii) Use of live links

(iii) PACE

(iv) Arrest Warrants

(v) Anti-social behaviour orders

No major concerns appear to have been raised on these issues in recent consultations.

6.0 Conclusion

Recent consultation relevant to the draft Criminal Justice Order 2007 has raised a number of issues. Further to the issues identified within this briefing document there are some broader considerations which apply to the Order as a whole:

• Resource allocation for the development and enforcement of new legislation
• Publicising the range of new law and measures- ensuring public awareness

  [1] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007

  [2] Ibid.

  [3] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 
  http://www.nio.gov.uk/proposed_draft_criminal_justice_(northern_ireland)_order_2007_explanatory_document.pdf

  [4] Draft Criminal Justice (Northern Ireland) Order 2007. 
  http://www.nio.gov.uk/the_criminal_justice_(northern_ireland)_order_2007_draft_statutory_instruments.pdf Section 6.

  [5] Ibid. Offences as specified in Schedule 1

  [6] Ibid. Art 3.

  [7] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 (para 2.6)

  [8] Draft Criminal Justice (Northern Ireland) Order 2007 art 4(3)- the court shall impose an ICS and specify a period of at least two years as the minimum period for the purposes of Art 7.

  [9] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.16

  [10] Ibid.

  [11] Draft Criminal Justice (Northern Ireland) Order 2007 art 4.(3)- the court will specify a period of at least two years as the minimum period for the purpose of Article 7 (release on licence of certain prisoners)

  [12] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007.

  [13] Ibid. 2.8

  [14] Draft Criminal Justice (Northern Ireland) Order 2007 Chapter 2- Custodial Sentences

  [15] Ibid Article 10 (a)

  [16] Ibid Article 10 (b)

  [17]http://www.opsi.gov.uk/si/si1998/98150404.htm#45 -Punishment of certain grave crimes

  [18] Ibid- Juvenile Justice centre orders

  [19] Draft Criminal Justice (Northern Ireland) Order 2007 Art. 11

  [20] Ibid. Art 12

  [21] Ibid Art 13

  [22] Ibid Art 14

  [23] Ibid Art 15

  [24] Ibid Art 16

  [25] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.10

  [26] Determinate Custodial Sentence means a custodial sentence for a determinate term. Draft Criminal Justice (Northern Ireland) Order 2007, Art 17(2)

  [27] Draft Criminal Justice (Northern Ireland) Order 2007, art 13. 
  http://www.nio.gov.uk/the_criminal_justice_(northern_ireland)_order_2007_draft_statutory_instruments.pdf

  [28] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.11

  [29] Ibid para 2.11

  [30] Review of the Sentencing Framework in Northern Ireland NIO Consultation Document, Pg 12. May 2005 
  http://www.nio.gov.uk/review_of_the_sentencing_framework_in_northern_ireland_consultation_and_responses.pdf

  [31] Ibid, Pg 13

  [32] Draft Criminal Justice (Northern Ireland) Order 2007 art. 26

  [33] Electronic monitoring is a system of using electronic devices to determine where an individual is. Typically an offender will wear a small electronic transmitter on wrist or ankle. Review of the Sentencing Framework in Northern Ireland NIO Consultation Document, Pg 20. May 2005

  [34] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.12

  [35] Review of the Criminal Justice System in Northern Ireland, 2000 para 12.83 
  http://www.nio.gov.uk/review_of_the_criminal_justice_system_in_northern_ireland.pdf

  [36] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.12

  [37] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.14

  [38] Response by Criminal Justice Inspection Northern Ireland to the Draft Criminal Justice (NI) Order 2007 29th November

  [39] Review of the Sentencing Framework in Northern Ireland NIO Consultation Document p.28

  [40] Draft Criminal Justice (Northern Ireland) Order 2007 art. 48

  [41] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.16

  [42] Probation Board Northern Ireland Corporate Plan 2008-2011, Consultation Document http://www.pbni.org.uk/cp0811draft.pdf

  [43] Review of the Sentencing Framework in Northern Ireland NIO Consultation Document, May 2005 Pg 15.

  [44] Draft Criminal Justice (Northern Ireland) Order 2007 art.51

  [45] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.19

  [46] Ibid. para 2.20

  [47] Draft Criminal Justice (Northern Ireland) Order 2007 art. 61

  [48] Ibid art. 62

  [49] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.20

  [50] NIO Road Traffic and Driver Disqualification Consultation November 2006- these devices consist of a small box which is attached to a sample head and mouthpiece which can then be fitted to a vehicle. The alcohol interlock ensures that the driver is sober before he can start the vehicle.

  [51] Ibid. Such programmes would apply to a person who is convicted of a second drink-driving offence within ten years of a first conviction.

  [52] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007

  [53] NIO Road Traffic and Driver Disqualification Consultation November 2006 
  http://www.nio.gov.uk/road_traffic_and_driver_disqualification_a_consultation.pdf

  [54] Ibid- listed: Statutory definition of “careless driving”; Causing death or grievous bodily injury by careless driving; Alternative verdicts to manslaughter; Wanton and furious driving; Causing death by driving – unlicensed, disqualified or uninsured drivers; Driving disqualification for any offences; Driving disqualification for fine defaulters; Power of police to stop a vehicle; Failure to allow a specimen to be tested; Breath specimens at the roadside; Vehicles causing alarm, distress or annoyance; Road freight operators’ licences; High Risk offenders: Medical enquiries following disqualification; Speed Assessment Equipment Devices; Alcohol Ignition Interlocks

  [55] Summary of Consultation Responses to NIO Road Traffic Offences Consultation, 2007 Pg 1. 
  http://www.nio.gov.uk/summary_of_responses_to_road_traffic_consultation.pdf

  [56] Ibid p. 2

  [57] Ibid p. 7

  [58] Ibid p. 7

  [59] Ibid p. 8

  [60] Draft Criminal Justice (Northern Ireland) Order 2007 art 66.

  [61] Subject to the conditions as outlined in art 66

  [62] Draft Criminal Justice (Northern Ireland) Order 2007 art 69.

  [63] Explanatory Document, Proposed Draft Criminal Justice (Northern Ireland) Order 2007 para 2.21

  [64] Ibid 2.22

  [65] Consultation Paper on Bye-Laws Regulating the Consumption of Intoxicating Liquor in Public Places, September 2003 http://www.dsdni.gov.uk/bye_laws_reg_intox_liq.pdf p.2

  [66] Ibid p.3 para 2.1

  [67] Ibid para 2.2

  [68] Ibid p.3

  [69] Written submission to Ad Hoc Committee from the Department of Social Development on Articles 67-71 of the Draft Criminal Justice Order (NI) 2007.

  [70] Draft Criminal Justice (Northern Ireland) Order 2007 art. 89

  [71] The Law on Knives in Northern Ireland: A Consultation July 2006 http://www.nio.gov.uk/the_law_on_knives_in_northern_ireland.pdf

  [72] The Law on Knives in Northern Ireland: Summary of Responses to a Consultation, October 2007 
  http://www.nio.gov.uk/a_summary_of_responses_to_a_consultation_on_the_law_on_knives_in_northern_ireland.pdf

  [73] Ibid

Appendix 4

List of Witnesses 
who Gave Oral Evidence 
to the Committee

List of Witnesses who Gave 
Oral Evidence to the Committee

Mr Gareth Johnston Northern Ireland Office
Mr Tom Haire Northern Ireland Office
Mr Jim Strain Northern Ireland Office
Ms Anne O’Connell Northern Ireland Office
Ms Amanda Patterson Northern Ireland Office
Mr Jake McClure Northern Ireland Office

Ms Linda MacHugh Department for Social Development
Mr Gary McAlorum Department for Social Development

Mr Ronnie Spence Probation Board for Northern Ireland
Mr Brian McCaughey Probation Board for Northern Ireland
Ms Cheryl Lamont Probation Board for Northern Ireland 
Ms Louise Cooper Probation Board for Northern Ireland
Mr Graham Kelly Probation Board for Northern Ireland

Mr Kit Chivers Criminal Justice Inspection Northern Ireland 
Mr Brendan McGuigan Criminal Justice Inspection Northern Ireland
Mr Tom McGonigle Criminal Justice Inspection Northern Ireland

Mr Peter Smith QC Chair of Life Sentence Review Commissioners

Mr John McMullan Department of the Environment
Mr Harry Green Department of the Environment

Ms Olwen Lyner Northern Ireland Association for the Care 
and Resettlement of Offenders
Mr Pat Conway Northern Ireland Association for the Care 
and Resettlement of Offenders

Prof Monica McWilliams Human Rights Commission
Dr Nazia Latif Human Rights Commission
Ms Denise Magill Human Rights Commission
Ms Anne Hope Human Rights Commission

Mr Robin Masefield Northern Ireland Prison Service
Mr Eddie Finn Northern Ireland Prison Service
Mr Brian Ingram Northern Ireland Prison Service

Superintendent David Boyd Police Service of Northern Ireland
Inspector Rosie Leech Police Service of Northern Ireland
Inspector Gary Atkinson Police Service of Northern Ireland
Mr John Connor Police Service of Northern Ireland