AD HOC COMMITTEE ON THE DRAFT CRIMINAL JUSTICE (NI) ORDER 2007
OFFICIAL REPORT
(Hansard)
Draft Criminal Justice (NI) Order 2007
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:
Mr Tom Haire ) Northern Ireland Office
Mr Gareth Johnston )
Mr Jake McClure )
Ms Anne O’Connell )
Mr Jim Strain )
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.
I ask the witnesses to turn off their mobiles, as they interfere with recording.
Mr Johnston, will you introduce your team?
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.
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.
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.
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.
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.
Mr Johnston:
He recognises the value and importance of this dialogue, especially when we are considering the devolution of policing and justice.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Parliament will then be asked to approve the draft Order, which will contain amendments to the one that the Committee has before it today.
The Chairperson:
Technically, amendments cannot be made in Parliament; they must be made before that point.
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.
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.
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.
Mr Chairman, if you are content, I will hand over to Tom Haire, who will go into more detail on sentencing.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
That is an overview of the custodial-sentencing review and release measures.
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?
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.
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.
Mr Johnston:
We were rerouted.
Mr Wells:
I know the feeling.
Do the assessment of dangerousness provisions apply only to violent offenders or do they also cover sex offenders?
Mr Haire:
They apply to both.
Ms Anne O’Connell ( Northern Ireland Office):
They apply to violent and to sexual offenders.
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?
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.
Mr Johnston:
The question is about danger and risk; it is not about whether the offender was violent.
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.
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.
The Chairperson:
Do you want to follow that through?
Mr Wells:
I do not want to stray onto dangerous ground.
The Chairperson:
Do not cite individual examples.
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.
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?
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.
Mr Wells:
Could that only happen if an offender had been indicted in a Crown Court?
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.
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.
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.
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.
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.
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.
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.
Mr O’Dowd:
Will an individual be charged with a new offence? Who decides that an offender will be sentenced under the new regulations?
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.
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.
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?
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.
Mr O’Dowd:
Is the Lord Chief Justice willing to accept that offer?
Mr Johnston:
I am waiting to hear from him.
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?
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?
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.
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.
However, we can ensure that, in such circumstances, other arrangements are available.
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.
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.
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.
Mr McCartney:
Does the judge have latitude or is fixing a sentence determined by the schedule?
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.
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.
Mr Johnston:
The arrangement that allows the Attorney to do that is already in place.
Mr Strain:
That is the law in relation to what may be considered unduly lenient sentences. However, these provisions will not affect that.
Mr McCausland:
I am looking at the schedule for serious offences. Would any offence that involves child pornography be automatically termed a serious offence?
Mr Haire:
Yes, if that is the offence charged and it is on the schedule.
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?
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.
Mr McCausland:
Would it be up to the court or the judge to decide which of the two sentences would apply?
Mr Haire:
Yes.
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?
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.
Mr McCausland:
Does exposure count as a serious offence?
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.
Mr Johnston:
Offences more serious than exposure — grooming or physical contact, for example — would come under a different range of offences.
Mr McCausland:
The evidence seems to suggest that those who are guilty of such offences tend to reoffend.
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.
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.
Mr Haire:
Those are specified offences with sentences of less than 10 years. We are looking at serious offences.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Mr O’Dowd:
Are our risk-management systems based on international best practice?
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.
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?
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.
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.
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?
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?
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?
Ms Patterson:
I think that curfews and electronic tagging will be applicable even if a person is sentenced before the Order is enacted.
Mr Johnston:
Licence conditions could include curfews and electronic monitoring.
Mr McFarland:
If an offender who was sentenced before the draft Order comes out of jail —
Mr Johnston:
Who is not subject to licence —
Mr McFarland:
Can they be tagged when they are out and still be considered a danger?
Ms Patterson:
No. Not at the minute.
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.
Ms Patterson:
That will be the case as soon as the new legislation is implemented.
Mr Johnston:
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.
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.
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?
Mr Johnston:
Yes — if he has been released under an Article 26 sex offender licence.
Mr McFarland:
Therefore he can be tagged and made subject to a curfew when he is out on licence.
Mr Haire:
Yes — once that period has been commenced.
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.
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.
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.
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.
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.
The Chairperson:
As this will be an enhanced function for the parole commissioners, what resources will the Government make available to them?
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.
The Chairperson:
It will mean a considerable enhancement to the work of the parole commissioners.
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.
Mr McCausland:
Is supervised activity the same as community service?
Mr Haire:
In essence; although the activity may not be work-based; it could be training or education.
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?
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.
Mr McCausland:
Does the court determine the activity?
Mr Haire:
The Probation Board would decide that.
Mr Johnston:
The courts decide on the number of hours, which could be up to 100.
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.
Mr Johnston:
That will be the responsibility of the Probation Board.
Mr McCausland:
Who will guide the Probation Board?
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.
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?
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.
Mr McCausland:
Does the Secretary of State draw up rules on supervised community service that can be changed because they are not legislation?
Mr Strain:
The rules will be included in subordinate legislation.
Mr Johnston:
They will be relatively straightforward to change.
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?
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.
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?
Mr Haire:
The Secretary of State will make that decision in consultation with the Prison Service.
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?
Mr Jake McClure ( Northern Ireland Office):
That is the figure that has been used in England and Wales
Mr McFarland:
Do we know why?
Mr Johnston:
We do not know.
The Chairperson:
If you have any further information on that, would you get back to us?
Mr Johnston:
I will make enquires and put something in writing.
The Chairperson:
If there are no further questions on that section, we will move on to the road traffic provisions of the Order.
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.
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.
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.
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.
The Chairperson:
Article 64 will deal with people misusing vehicles on the public roads who might not necessarily have stolen those vehicles.
Mr Strain:
Vehicles, whether lawfully or unlawfully held, that are causing alarm, distress or annoyance can be seized and disposed of.
The Chairperson:
Can they be seized on the spot without a court order?
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.
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.]
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?
Mr Strain:
Yes. They can be lifted from any public area.
Mr Wells:
Can they be pursued if they fly back onto their own property?
Mr Strain:
Police cannot go into a private dwelling to seize them.
Mr Wells:
Will they be safe if they scoot to the first private house?
Mr Strain:
The police would make a report. Several issues are involved.
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.
Mr Wells:
I have never seen an anti-roll bar on a quad bike in my life.
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.
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.
Mr Wells:
That could be an eight-year-old. The offenders are mostly children and teenagers, so how would the law apply to them?
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.
Mr Wells:
It is sometimes difficult to find the parents.
Mr Strain:
Those are enforcement issues.
Mr Wells:
The police tell me that they can do very little at the moment.
Mr Strain:
That is what the provisions are about.
Mr Wells:
If offenders are under a certain age, the police still cannot do anything.
Mr Strain:
There is an issue about prosecuting the child, but the police seize the vehicle.
Mr Wells:
However, even though a vehicle may not be seized on private property a prosecution can still be made.
Mr Strain:
Yes.
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?
Mr Strain:
Article 54 deals with causing death by careless driving.
Mr McFarland:
Article 54 deals with:
“Causing death or grievous bodily injury by driving: unlicensed, disqualified or uninsured drivers.”
Mr Strain:
Yes, but that comes under careless driving.
The Chairperson:
One must draw the distinction between careless and dangerous driving. Dangerous driving is a more serious offence.
Mr McFarland:
Article 53 deals with:
“causing death or grievous bodily injury by careless or inconsiderate driving.”
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?
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.
Mr McFarland:
However, if an accident is caused by careless driving, there is a maximum five-year sentence.
Mr Johnston:
Yes; and there is also an offence of dangerous driving for which the maximum penalty is a 10-year sentence.
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?
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.
Mr McFarland:
Is driving that is impaired by drink or drugs taken into consideration?
Mr Strain:
Driving under the influence is different.
Mr McFarland:
Can someone be prosecuted for dangerous driving and driving under the influence of drink or drugs?
Mr Strain:
Yes, for any heady mix of offences.
Mr McCausland:
Do the police feel that the new laws on vehicles causing annoyance are adequate?
Mr Johnston:
They have been very supportive.
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.
Mr Johnston:
They have welcomed our proposals.
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.
Mr Johnston:
Yes.
The Chairperson:
Article 59 is “Alcohol ignition interlocks” What does that mean?
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.
The Chairperson:
You look puzzled, Mr McFarland.
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?
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.
The Chairperson:
I am mindful of the time. Mr McCausland, do you have a problem with time?
Mr McCausland:
I must leave at 3.45 pm or 3.50 pm.
The Chairperson:
You can stay for 10 minutes yet, however.
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?
Mr Haire:
If you agree, I will pick a few important issues at the outset and we will see how the time goes.
The Chairperson:
That is fine. If we cannot complete this, would you be prepared to come back?
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.
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.
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.
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.
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?
Mr Strain:
Yes.
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?
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.
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.
The Chairperson:
People who drink outside bars or restaurants are on licensed premises; they are protected by the licence and can lawfully consume alcohol.
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.
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.
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?
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.
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.
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?
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.
Mr McCausland:
Can that not be dealt with under the terms of their licence?
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.
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.
Mr Johnston:
That is something that we can consider and discuss further with the police.
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.
Thank you very much for coming; the meeting has been very helpful.
Mr Johnston:
I thank the Committee for its time this afternoon.
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.
Mr Johnston:
We would be happy to do so.
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.
Mr Johnston:
I welcome that opportunity; we will keep in touch with the Committee Clerk about that.
The Chairperson:
Of course. Thank you again.