AD HOC COMMITTEE ON THE DRAFT CRIMINAL JUSTICE
(NORTHERN IRELAND) ORDER 2007
OFFICIAL REPORT
(Hansard)
Life Sentence Review Commissioners
Department of the Environment
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:
Mr Peter Smith QC ) Life Sentence Review Commissioners
Mr Harry Green ) Department of the Environment
Mr John McMullan )
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.
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.
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.
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.
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.
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.
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.
Mr Smith QC:
Indeed.
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.
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?
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.
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.
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.
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.
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.
The Chairperson:
Have you made any estimate of the number of prisoners that might be added to the present prison population of Northern Ireland?
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.
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.
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.
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?
Mr Smith QC:
Do you mean globally, rather than simply our part of it?
Mr Weir:
Globally, yes.
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.
Mr Attwood:
I should know the answer to this question, but I do not, which is always a bad way to start. [Laughter.]
Is there any provision within the comprehensive spending review for 2008-11 for increased resources in respect of the new regime?
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.
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.
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.
The Chairperson:
The figure was not 50%.
Mr Attwood:
It was 50% in England and 20% here. Is that right?
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.
Mr Attwood:
Yes, that is right; that was the witnesses’ argument.
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.
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.
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.
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.”
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.
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.
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.
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.
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?
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.
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.
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?
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?
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?
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.
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.
Mr McCartney:
Will an open prison be part of the recommendations in the long term?
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.
The Chairperson:
What does the Wells v the Parole Board case state?
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.
The Chairperson:
That puts a heavy onus on the authorities to provide the necessary resources to assist prisoners to overcome that hurdle.
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.
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.
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?
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.
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.
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.
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.
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?
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.
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.
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.
Mr O’Dowd:
In your opinion, does that section of the legislation make society safer?
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.
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.
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.
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?
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.
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.
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 —
The Chairperson:
Or even sooner.
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.
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?
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.
Mr McFarland:
Am I right about that, Chairman?
The Chairperson:
Yes, that is true, it was —
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?
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.
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.
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.
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.
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.
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.
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?
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.
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?
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.
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?
Mr Smith QC:
No, schizophrenia is a mental illness.
Mr McCausland:
What are personality disorders?
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.
Mr McCausland:
Is it correct to say that people with personality disorders are treated by undertaking programmes rather than by medication?
Mr Smith QC:
Programmes are the only known way of ameliorating the condition.
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?
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.
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.
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.
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?
Mr Smith QC:
Yes, of course.
The Chairperson:
Thank you very much.
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.
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.
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.
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.
The Chairperson:
Thank you.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Perhaps the witnesses could continue, and members will raise any additional points when they have finished.
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.
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.
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.
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.
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.
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.
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”.
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.”
To drive without “reasonable consideration for other persons” now applies:
“only if those persons are inconvenienced by his driving.”
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.
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”.
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”
— and —
“causing death or grievous bodily injury by careless driving when under influence of drink or drugs”.
It also sets out the offence of “furious driving”.
Article 64 deals with:
“Seizure of vehicles used in manner causing alarm, distress or annoyance”
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.
Article 65 sets out the regulations on the seizure of vehicles, namely the removal, retention, release or disposal of vehicles and any fees accrued.
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?
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.
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.
Mr McCartney:
What costs are involved?
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.
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.
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.
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?
Mr McMullan:
I believe so.
Mr McCausland:
That is fine.
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?
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.
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?
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.
Mr McCausland:
What is the significance of furious driving, as detailed under the proposed article 57? You said that that was an old offence.
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.
Mr McCausland:
Does that include car parks?
Mr McMullan:
The Belfast Harbour estate is a good example of private land in Northern Ireland.
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.
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.
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.
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.
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.
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.
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.
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?
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.
Mr Weir:
The measures provide parity with GB, apart from one or two that are drawn from a different source?
Mr McMullan:
Yes, but those still provide parity with GB.
The Chairperson:
If there are no further questions, I thank Mr McMullan and Mr Green. You have been very helpful.