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

OFFICIAL REPORT

(Hansard)

Draft Criminal Justice (NI) Order 2007

 9 January 2008

Members present for all or part of the proceedings:
Mr Alban Maginness (Chairperson)
Mr Alex Attwood
Dr Stephen Farry
Mr Nelson McCausland
Mr Alan McFarland
Ms Carál Ní Chuilín
Mr John O’Dowd
Mr Peter Weir

Witnesses:
Mr Pat Conway ) Northern Ireland Association for the Care and Resettlement
Ms Olwen Lyner ) of Offenders (NIACRO)
Dr Nazia Latif )
Prof Monica McWilliams ) Northern Ireland Human Rights Commission (NIHRC)
Ms Denise Magill )
Ms Ann Hope )
Mr Eddie Finn )
Mr Brian Ingram ) Northern Ireland Prison Service
Mr Robin Masefield )
Superintendent David Boyd )
Mr John Connor ) Police Service of Northern Ireland (PSNI)
Inspector Rosie Leech )

The Chairperson (Mr A Maginness):
I advise members that there are four sets of evidence to get through today. We will adhere as closely as possible to a maximum of 30 minutes for each set of witnesses, including questions and answers, as there is other business to deal with after the evidence sessions.

I welcome the representatives from the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO), Ms Olwen Lyner and Mr Pat Conway. We note that NIACRO has already provided the Committee with a written submission: please take that as read, as we are pressed for time, and I do not want to restrict the time available for questions and answers. Please make your introductory remarks and any salient points in relation to the draft Criminal Justice ( Northern Ireland) Order 2007.

Ms Olwen Lyner (NIACRO):
I thank the Committee for the opportunity to give evidence this afternoon. As some members will know, NIACRO is a criminal justice voluntary organisation. It provides a range of services and programmes for young people and adults who have offended, as well as ex-prisoners, and supports the families of those who are in prison. NIACRO has an annual budget of approximately £3·5 million and around 80 members of staff. Although the services that we provide are very important, it is also essential that the lessons that we learn from our service delivery are shared with bodies such as this Committee at moments such as this, when legislation is being considered. Therefore, the policy comment aspect of our work is important.

To set a background context, we believe that there should be opportunities for offenders to be reintegrated back into the community. The overriding purpose of our work relates to crime reduction, reduction in victimisation and crime prevention. That is an important aspect for the Committee to understand.

We have answered the questions that were posed to us regarding what we support, particularly in the legislation, and we have outlined what causes us concern. We do have some concerns about the legislation. As indeterminate and extended sentences are likely to be introduced, any organisation with its roots in rehabilitation will be concerned unless we are convinced that there are adequate protections for those in the system. We will monitor that over time to ascertain how it proceeds.

Obviously, we are aware that extensive work has been carried out to ensure that there is not a transposition into our situation of legislation that has not been helpful in England and Wales. However, we are concerned that people could be held in prison for offences that they may commit, as opposed to those that they have committed. That is difficult for us to accept.

Furthermore, all those players who will be involved in the new system may well be forced — certainly through media scrutiny — to become more risk averse. We know that working with offenders and moving people towards positive resettlement and reintegration is a risk business, and it is important to recognise that some levels of risks will have to be borne by the system as this process proceeds. We are happy to take questions.

The Chairperson:
Thank you. Your written submission states that:

“NIACRO is very concerned we have lost three cornerstones that helped in the management of offenders”.

One of the “cornerstones” highlighted is the removal of any form of remission. It is the understanding of this Committee that remission continues, but in a different form. In other words, a person is released from prison but under certain conditions. Are you contending that remission is effectively abolished? What is the point that you are making in your written submission regarding that?

Ms Lyner:
Regarding the notion of remission, obviously automatic 50% remission is being lost, which I do not think is a particular problem. The notion is that remission can be worked with, to motivate prisoners by pointing out that their involvement will result in a reduction in the length of time that they will be in custody. However, remission will no longer be an automatic right; therefore, good behaviour will not necessarily be encouraged — although it should — and there will be a process to go through.

The Chairperson:
Right. Therefore, in that sense, is it your view that there is no remission?

Ms Lyner:
Yes. I do not believe that the term is there.

The Chairperson:
Your written submission also refers to youth justice custody. It states that:

“NIACRO welcome the creation of powers to allow children age 17 to be accommodated in the Juvenile Justice Centre but would want this strengthened to a presumption that all under 18s — children should be there unless there is compelling evidence that it is an unsuitable placement.”

Will you like to comment further on that?

Ms Lyner:
It has always been our contention that any one under the age of 18 — any one who is considered to be a child — should not be in the prison system. Some years ago, when there were consultations on the size of the provision that is now located in Bangor, we were concerned that the plans were not taking into account the numbers of people who might come through that system.

The latest inspections of Hydebank suggest that some people who are under 18 are being held there. It is our view that the presumption should be that all the offenders who are under 18 should be located there, unless a compelling reason is evidenced as to why they should not be.

The Chairperson:
Under the draft Order there is no presumption of that?

Ms Lyner:
No, there is no presumption that offenders under the age of 18 should not be in the prison system. NIACRO does not think that the draft Order is strong enough on that.

The Chairperson:
If I am misrepresenting what the Northern Ireland Office has said about this I stand to be corrected, but my understanding is that the NIO has said that the criminal justice review did not say that offenders under the age of 18 should not be dealt with by the prison system. Therefore, the NIO is relying on that.

Ms Lyner:
Since the criminal justice review was published, a number of measures have been introduced that have changed a range of things. For instance, antisocial behaviour orders were not mentioned in the criminal justice review. It is still our contention that people under 18 should be dealt with in the juvenile estate, and that adults should be dealt with in the prison system. It is a matter of ensuring that the legislation is framed so that that presumption exists.

The Chairperson:
The criminal justice inspectorate agrees with you on that issue.

Mr Weir:
I have a brief question.

The Chairperson:
Is it a supplementary question to that particular point, or is it a fresh point?

Mr Weir:
It is a supplementary question to the first point about the three cornerstones, rather than the second point. I understand the explanation that you have given in response to the Chairman, but can you expand on the issue of the requirement for consent?

Mr Conway:
Our main point is on the issue of voluntarism. If we can engage with ex-offenders and ex-prisoners and get them to see the value of an engagement to address their behaviour, that would be more successful in reducing their offending behaviour. Under the proposed legislation, the element of voluntarism could be reduced.

Mr Weir:
Thank you, I was unclear on what you meant by that.

Ms Ní Chuilín:
I have a completely different point to make. Olwen and Pat, you are very welcome to the Committee. Can you elaborate about the presumption of the use of community disposals and explain and expand on NIACRO’s views on professionally managed and community sentencing? Where possible, can you talk about successful outcomes?

Ms Lyner:
The presumption of the use of community disposals is also about not wanting to see an increase in the prison population as a consequence of the legislation. Even now, there are a number of people who have ended up in the prison system whose likely chance of a more positive re-integration outcome might have been every bit as well served if they had had a community sentence. One of the key concerns is that when someone is removed from society in order to protect the public, that person suffers a loss of connection with family, accommodation and benefits. Work must be done to ensure that these fall into place again when the person is released. The system does not work in a joined-up fashion to make that happen.

There are several reasons for the use of community disposal. It is not always logical why some people get a prison sentence and others who have committed a similar offence get a community disposal, but the outcome is that those who go to prison are more likely to reoffend. It seems to NIACRO that community disposals work, they are cheaper, and they do not require the effort for offenders to reconnect all of the threads of their lives that need to be put in place if they have been taken out of the community for a period.

Ms Ní Chuilín:
Are there other areas where community disposals are working now, other than in different parts of the North? Do you have any examples of community disposals from England, Scotland, Wales or the South, even anecdotal examples?

Mr Conway:
It is generally regarded that any increase in lay engagement — that is any engagement beyond the criminal justice system with respect to resettling people coming out of prison or reintegrating people who have been through the court system for criminal or offending behaviour — is to be prized and sought after. That ranges from engagement with non-criminal justice Departments, through to community organisations and voluntary organisations, and it involves bringing to bear all the elements that are involved. We have broken it down into the six elements that are required, and Olwen referred to different areas: housing, social, community, financial, training and employment. Thus, a format exists, and we work to that format.

We recognise, and are on record as saying, that we do not have the complete answer to this issue. The criminal justice system cannot solve it by itself. It needs to engage other Ministries, other Departments, and, very importantly, other community elements to assist in resettlement. Without those elements, it will not happen. Our fear is that, unless that engagement occurs, there will be an increase in the prison population — and plans seem to be afoot to allow that to happen. The criminal justice system recognises that there needs to be resettlement, but, in our view, the emphasis seems to be on the “front end” of the criminal justice system — loading people through the courts and the prison systems and all the rest of it. The resettlement and reintegrated elements simply are not there. We would argue for, not necessarily extra funding, but a redistribution of current resources to what is called the “back end” — which I think someone referred to previously as “down river”. I am sure that everyone argues for extra resources, and we are no different. However, before we make that argument, let us look at where resources are currently applied to see if there is any way that we can shift them within the system.

Mr McFarland:
I thank the witnesses for their presentation.

I would like a factual steer on video links, which are mentioned on page 3 of your presentation. As I understand it, an individual’s first appearance in court must be in person, and they are then put on remand — and we can argue about the efficiency of the courts system in continually remanding people. This measure would mean that it would not be necessary to wheel people backwards and forwards to court. However, I am surprised to hear that people can receive their final sentence by video link. I understood that they had to turn up in person for the first and last appearances. Is that not correct?

Ms Lyner:
As we understand it — and we could be wrong — one of the proposals in the legislation is that they do not have to turn up in court; instead they would be sentenced by video link. We do not believe that the new proposal —

Mr McFarland:
Is that current practice?

Ms Lyner:
It is not current practice; it would become the practice if the proposal in the legislation were followed through.

The Chairperson:
It could happen, but it might not necessarily happen. Is that your point? It is not mandatory.

Ms Lyner:
Whether it could or it could not, we do not believe that it should.

The Chairperson:
Ever?

Ms Lyner:
No — a person should be present in court for sentencing.

Mr McFarland:
Is it correct that, under the current system, a person must appear in court for sentencing? I am wondering why there would be a departure from that practice.

Ms Ní Chuilín:
Efficiency savings.

The Chairperson:
I think that the legislation would allow for sentencing by video link, but I do not think that the legislation proposes that it should happen in all circumstances. The normal procedure is for a prisoner to be sentenced in court in person.

Dr Farry:
In the conclusion to the presentation, a very strong statement is made, namely that there is a danger that people may be kept in prison because of what they might do as opposed to what they have actually done. I want to tease that issue out a little further because it has very worrying implications.

At the moment, people go to prison for what they do, primarily because they are judged to be a risk to society, and decisions on whether or not they are released depend, to an extent, on an assessment of that ongoing risk. In a sense, such decisions are already linked to what they might do. Are we talking about a single spectrum whereby the balance is perhaps shifting more towards the burden of proof and people having to prove that they would not be a risk if released, as opposed to a fundamental change in the system whereby people are effectively kept in prison for crimes that, hypothetically, they could commit, but which they have not yet actually committed?

Ms Lyner:
The member is correct: it is extremely worrying. There is potential for people to be kept in prison for crimes that they might commit, because they cannot necessarily meet the requirement to convince people that their risk is reduced. There will be a great burden of responsibility on the folk who are charged with the responsibility for carrying out those risk assessments. Public outcry will produce an even greater burden should anything go wrong. Therefore, although the Northern Ireland Association for the Care and Rehabilitation of Offenders fully accepts that there are a dangerous few, once the notion has been accepted, the matter is about risk assessment, rather than completed sentences, that will enter us into different and new territory. There are risks. That is a concern that must be monitored.

Dr Farry:
That is the point that I am trying to tease out. To what extent does that new territory represent a fundamental change to the entire ethos of the criminal justice system and human rights, as opposed to a much more stringent approach to the current system where the balance, in which the burden is on the detainee to prove that his or her risk is reduced, has been changed considerably and fundamentally? Does it represent a major shift from what exists at present, or is it a move into totally new territory?

Ms Lyner:
It is a move into new territory with regard to people’s being released from custody. There is no doubt that, in Northern Ireland, a system exists in which the risk of offenders who are already in the community is managed. Inspection reports tell us that that process is well managed and documented. Therefore, it is not the case that we have no experience of risk management. However, deciding whether to release someone is completely new territory, which will depend on what sort of behaviour the person is exhibiting in prison, rather than time served. The association accepts that there are, undoubtedly, a few offenders who pose a high risk to society. However, it must be ensured that the instruments that are used for risk assessments are sensitive enough to identify the few rather than, in risk-aversion terms, end up being a blunt instrument for the many.

Dr Farry:
Therefore, for prisoners who are serving shorter terms, the potential difficulties and burden to establish that they are no longer a risk are much greater because the opportunities to prove the absence of risk are much less within a shorter timeframe. I suppose that the longer the process continues, that degree of risk will diminish and the opportunities to assess it will increase simply because the resources are more readily available and the opportunities to use them become greater.

Ms Lyner:
The association views that slightly differently. The member is absolutely correct that it would be more difficult for short-term prisoners to avail of the programmes that might help them to demonstrate their motivation to change because the management of the prison system does not make it that easy to bend programmes to suit people’s sentences in order to provide them more quickly. However, I do not believe that offenders who have served longer sentences for what one must assume are more serious offences will necessarily find it easier to provide the proof that is required. We must wait and see how that develops.

Dr Farry:
It is not so much a question of proof. If there is a question of limited resources being made available, the longer that someone is in prison, the greater the chances that he or she will be able to take up different courses and access different agencies in order to discuss his or her situation, whereas those who serve shorter terms will have less access to those resources, which are fixed and limited. Those prisoners will be caught in trap.

Ms Lyner:
I am aware that in the evidence that the Committee has received much has been said about the need for resources. There are a lot of resources in the criminal justice system, particularly at the front end of the system.

There is a lot of money in detecting and prosecuting people; there is a lot in sentencing and holding; and very little, less than 10%, is focussed on engaging with people’s behaviour. That needs to be seriously redressed. We have high costs at the front end.

Obviously, we want to be sure that whatever budget that comes here is of sufficient size to do the job. We also need to be sure that we spend money wisely. I take the point about efficiency saving, but I think we could bear some savings. Some efficiency savings could be made at the front end of the system.

Mr Conway:
I will add a couple of points and to follow up what Olwen has said. Take the Prison Service as an example. The functions of prisons are: primarily to contain, secondly to care and thirdly to resettle. NIACRO has tried to find out what resources are applied to each of those three functions. Anecdotally, we know that, when things go wrong in a prison, all the attention reverts to containment and focus on education, health and other aspects is lost.

Another point is that the application of current programmes is under pressure. Things that should be dealt with are not being dealt with. One of the points made in the latest edition of ‘NIACRO News’ relates to sectarianism and hate crime. There are no programmes, in either the prison or the probation system, that challenge people’s attitudes and behaviours with respect to sectarian actions or hate crimes. That is one example of where a huge gap exists.

Mr O’Dowd:
Some of my points have been covered by answers to previous questions. However, prisons are for detention, as the witness has rightly said, but also for rehabilitation. The section of the draft Order that we are discussing relates to determining sentences. How does that assist in the rehabilitation of a prisoner? Perhaps you think it does not relate to it.

Ms Lyner:
That is a good question. It is difficult for prisoners whose sentences are indeterminate. With respect to how the Order will work in practice, one element that must be worked on is the need to make clear to the prisoner which consistently changed behaviours will make a difference to the way in which he will be treated the next time he comes before the board.

In our view, there is little difference between a life sentence and an indeterminate sentence. Experience shows that it is difficult to deal with life-sentence prisoners, especially in Northern Ireland where no structured approach to that situation has been adopted. That will be a real test. It is not easy to deal with a prisoner whose sentence is indeterminate, or one who has received a life sentence, unless one is clear as to what the goals are throughout the process. Explaining that to prisoners, and motivating them to move on, requires a talent for dealing with and engaging with them. Otherwise, an increased prison population will result.

NIACRO is not convinced that we will face an increase of the order suggested by some of the websites.

The Chairperson:
What order of increase do you foresee?

Ms Lyner:
Predicting the increase is not an exact science. NIACRO does not want to see an increase greater than 120 to 200 prisoners. Otherwise, we should question what the Prison Service is at. Is it successfully reintegrating or resettling people, if the numbers are just turning around again? If that is what is predicted, the system is not doing well. Under the public sector agreement (PSA) targets of the NIO, re-offending should be reduced. If it predicts significant increases, it is failing to meet its PSA targets. It needs to send the public consistent messages.

The Chairperson:
With respect to increased numbers, estimates of the net impact vary to between an additional 60 prisoners to an additional 120 or so, by 2020. That estimate comes from the Prison Service. Similar estimates were given us by the NIO and the Northern Ireland Probation Board. However, Mr Peter Smith QC took a more reserved position on the increase. He was not quite so confident that the numbers would be as presented to the Committee. What is your view? Perhaps you cannot answer.

Ms Lyner:
It is not an exact science. We do not engage in predicting the numbers.

Mr Conway:
We have severe reservations about such predictions. How can you predict what will happen in 2020? We know that the prison population by that time is predicted at 2,500. Where does that figure come from?

Where does that figure come from? Plans are being made to expand the prison system. NIACRO’s argument is that it could equally be predicted that those figures could be driven down if the will was there and there was an effective resettlement strategy in place. If there was a resettlement strategy that actually worked, then the logical conclusion is that there would be fewer people in prison.

We are bemused about where the figures are coming from. If those figures are being imported from GB, with regard to good practice, it has its own difficulties. We are in contact with people who are involved in resettlement systems in GB. They are facing the same problems — perhaps, worse problems — than we in Northern Ireland. Despite that, we are trying to import ideologies from GB and to predict on prison places. We are at a loss —

The Chairperson:
Although, there are some material differences between the draft Criminal Justice (Northern Ireland) Order 2007 and similar legislation for England and Wales.

Mr Attwood:
I, like Dr Farry, picked up on Mr Conway’s conclusion that is, in one way, a stark warning to the Ad Hoc Committee. He has said that he is concerned that the legislation will evolve into a massively expensive crime-prevention measure. The Ad Hoc Committee has not, previously, heard any evidence that indicates that level of warning. Peter Smith QC was the only person who may have implied some doubts about what was happening. Speaking in a personal capacity, he said that the regime was introduced in Britain for political reasons and that there was no evidence base to support its introduction.

The Committee should take on board, fully, what has been said because it is contrary to the prevailing view of the Prison Service, the Probation Service and to that of others — such as the CJI — who have given evidence to the Committee. A lot of people are concerned that the resources will not follow the new regime and that the result will be a system that will be used for purposes for which it was not intended to be used. In the event that adequate resources follow the new regime — and mindful of what you said about the back end and the front end — is that sort of regime, in principle, something with which NIACRO could live?

Ms Lyner:
May I return to the start and why we may be saying something different? Different organisations have different standing, different responsibilities and make unique contributions. Some are instruments that process legislation. We are in the privileged position that we are not an instrument in that we can choose whether to bid to provide a service. I said, at the outset, that one of our prizes is that we are in a position to draw from our experiences and our relationships with others. The Committee should consider why we might say something different.

It would be of concern to us if the resources did not follow the new regime. We can see that if the regime is implemented — and prisoners are in a situation in which judges require, for their evidence of a reduced risk, that they participate in particular programmes — and the resources are there for particular programmes to be supplied, we would be pleased to see that happen. Mr Conway has already said, we are aware that programmes that would help to reduce risk are not delivered consistently.

If — as we said at the beginning of our evidence — it is about risk reduction and reducing crime, it is really important that programmes are delivered to those individuals, who are going through the system, that would change their behaviour and make them less of a risk. We accept the buying into that, with the reservations that we have about indeterminacy. If the resources are there, they are well used — they are there every day and not diverted off to security — and they are ring-fenced for the purposes of resettlement and reintegration, we will buy in to that process, as we have done already. It is in our name and we are into that process.

Mr Attwood:
Are you telling the Committee to be very cautious about the new regime if the required resources are not available, or the culture of the justice system does not change from the front end to the back end?

Ms Lyner:
Absolutely; that is what we are saying.

The Chairperson:
In any event.

Ms Lyner:
There is a responsibility on us, and on the Committee Members who take away the message from this meeting, to say that without the resources there will not be a healthy system. We know that we have a small system, which talks to itself — the relationships between the key players are very good and strong — so we could make a difference.

Regarding links that we have with the Assembly, the other critical aspect is to get other agencies involved. Recently, we were involved in an initiative with the NIO that aimed to bring other organisations together to find out what they could contribute — I have to say that there was a poor response.

Mr Attwood:
Are you aware of any discussions about the revenue consequences of this regime?

Ms Lyner:
None in particular — we have some details about particular agencies, but we are not in a position to comment on them.

Mr Conway:
We are assuming that, when the criminal justice powers are transferred, the money and resources will all go into the big pot, which means that there will be a scramble with the other Departments. What will happen then?

We do not want to leave the Committee on a negative note, because the transfer of criminal justice and policing powers is an opportunity to get things right. In our experience, from talking to colleagues in GB, the Republic of Ireland and other European jurisdictions, once the structures are embedded, they are very difficult to unpick. There is an opportunity here to do it right and rearrange the relationships. Instead of relying on how they historically evolved in a period of conflict, generate a new set of relationships for an effective criminal justice system. It should be possible to drive down the prison population, instead of having to debate the building of more prisons and all the attendant resource implications that are involved — that would be a huge drain on any public body.

The Chairperson:
Do you agree that there is a need to look at the prison establishment in general? I do not want to get into an argument in that field, but there is a general need to do that.

Mr Conway:
The relationship between sentencing and the prison population is also important. That is one of the things that we tried to figure out in relation to the prison numbers for 2020. For example, if the level of sentencing increases — if it is at the harsh end of the continuum — then there will be more people in prison. However, who makes those decisions, and how can those decisions be projected to 2020? Therefore, it is an art rather than a science.

The Chairperson:
The onus in that respect is primarily on the judiciary, is it not?

Mr Conway:
Yes, and the judiciary will prize their independence and say that it is nothing to do with anyone else.

The Chairperson:
Just before you arrived to give evidence, the Committee was given some information about the comprehensive spending review by the NIO. It states that approximately £14 million will be made available to criminal justice agencies for the implementation of the sentencing provisions. How that is allocated over the period 2008-11 will be dependent on the pace of implementation. This might be an unfair question, but do you think that that figure is reasonable?

Ms Lyner:
Notwithstanding that I said that there was some element of redistribution, there are significant new pieces of work that must be undertaken to deliver on the legislation. Being aware of the responsibilities that are likely to fall to the Probation Service alone, I feel that that is a very cautious sum. There will need to be some form of change programme in the Prison Service for different skills to be purchased, and increased responsibilities for the Parole Board are likely. I find it hard to think that that sum could deliver all that is required over a three-year period, unless we just start at year three.

The Chairperson:
Everything depends on the pace of implementation, which is an important consideration.

Ms Lyner:
I assume that the figure quoted is the top figure.

The Chairperson:
If you have any further thoughts on that, perhaps you will let us know.

Ms Lyner:
Absolutely.

Mr McCausland:
I have some questions about test purchasing. You mentioned the issue of underage purchase of alcohol, and said that better education and community support are more effective ways of addressing the issue. Does that mean better education of young people about the dangers of alcohol abuse, or education of staff in premises about what they should or should not be doing?

Ms Lyner:
Both would be appropriate. There are also issues around parenting programmes in that regard. In our response to the draft Programme for Government we raised issues about community programmes on addiction and alcohol-related matters. All of those ventures can make a contribution. However, we are concerned about the notion of using children for entrapment.

Mr McCausland:
Is that not common practice? I can think of instances in which test purchasing has already happened in Northern Ireland. The police in north Belfast carried out test purchases — they called it “Operation Alcopop” — in a number of off-licences. Illegal sales of alcohol to young people were detected in a very high percentage of those premises. The method seems to be quite widely used across the water in Great Britain, and has been used here. I am not sure why it is in the legislation; maybe it is regularising —

Ms Lyner:
It is regularising the practice and introducing some more protections. However, we do not agree with test purchasing in principle.

Mr McCausland:
Why do you not agree with it?

Ms Lyner:
Because it uses children to entrap adults. The proposed legislation at least suggests that parents should give permission, which has not always been the case.

The Chairperson:
There have been indications in Britain that the level of underage buying of alcohol has dropped significantly as a result of the use of children.

Mr McCausland:
What is the precise principle that you disagree with?

Mr Conway:
Children are being used in a criminal case to entrap adults. There are other ways to obtain proof. I recall that 20 years ago, when certain communities were concerned about the amount of alcohol being sold to children, this was done — in a very ad hoc fashion. The groups involved were visited by the police and warned not to continue. There are other ways of proving that licensed establishments are selling alcohol to children; it is not that difficult. Sending kids in is not the right way to do it.

Mr McCausland:
It has certainly proved difficult so far.

The Chairperson:
The use of children to entrap adults is a point of principle as far as NIACRO is concerned?

Ms Lyner:
Or to entrap other children, or anyone else.

The Chairperson:
Yes, of course.

Ms Lyner:
We have brought some information with us, which the Committee Clerk is going to distribute.

The Chairperson:
That will be distributed. Thank you very much for a very interesting presentation.

Ms Lyner:
Thank you.

The Chairperson:
I welcome the representatives of the Northern Ireland Human Rights Commission, and, in particular the chief commissioner, Monica McWilliams. You are familiar with this Building and this Chamber.

Professor Monica McWilliams ( Northern Ireland Human Rights Commission):
It is interesting to be on the other side of the table.

The Chairperson:
Just for the record, will you introduce your colleagues?

Professor McWilliams:
Thank you very much, Chairperson. I am the chief commissioner of the Northern Ireland Human Rights Commission, and I am accompanied by commissioner Ann Hope, Dr Nazia Latif, who heads the commission’s policy and research division, and Ms Denise Magill. Given the time constraints, we will provide the Committee with a full written submission on many more aspects of the legislation than we have time to focus on today. We have decided to focus on four key points that raise particular human rights issues.

The Chairperson:
We are pressed for time, not just today, but to complete our report. We only have another week or 10 days, so any written submission would be welcome as quickly as possible.

Professor McWilliams:
The Committee Clerk has alerted us to that. We will ensure that that paper is submitted to the Committee.

We welcome the opportunity to make a submission to the Committee. We have a unique statutory duty as an independent public body to advise the Assembly on any legislation, and particularly on its impact on human rights. Therefore, we hope that anything we say that pertains to the issue of human rights will be taken seriously. We have some concerns about this draft Order.

There are particular aspects of the legislation about which we wish to express our concern. The Committee has just heard from NIACRO, which has similar concerns, but we will address the issues from a human rights angle. The first issue that we wish to address is that of indeterminate custodial sentences. As the Committee is probably aware, there has already been widespread criticism of this provision in England. The Chief Inspector of Prisons, Anne Owers, has put her concerns on record. In the course of our submission we will refer to a recent High Court judgement on this subject. Dr Latif will take us through some of the human rights concerns about indeterminate sentencing.

We also have concerns about anti-social behaviour orders. We will also deal with the live link issue, which you have just discussed, and test purchasing of alcohol. We will end on a good note: we are pleased to welcome the provision of supervised activity orders. The Human Rights Commission has completed two pieces of research on women in prison. In both of those, and particularly the most recent, ‘The Prison Within’, we made a series of recommendations about those orders. We argued for a system of alternatives for fine defaulters.

In my conclusion, if we have time, I will pick up on some of the points that I heard being discussed in relation to resources and current service delivery. We are very familiar with those issues, having carried out some detailed investigations of what is currently happening in prisons and what alternatives to prison would look like. However, I will not go into that at this stage.

Dr Nazia Latif ( Northern Ireland Human Rights Commission):
Of course, the public must be protected, and it is the duty of the state, as the fundamental guarantor of human rights, to ensure that the public are adequately protected from all forms of crime — in this instance, from serious and dangerous crime. However, the commission is concerned about the very concept of indeterminate sentences because, as you have already heard today, they appear to punish people for what they might do as well as what they have already done. In introducing the legislation, the Northern Ireland Office has failed to refer to evidence that indicates how indeterminate custodial sentences are working in England and Wales to protect the public and to reduce the possibility of reoffending while protecting the fundamental human rights of prisoners as well as victims. The commission is certainly aware of reports that strongly suggest that the system is not working well in England and Wales.

We note the extra safeguards in the draft Order — the minimum two-year tariff and the introduction of extended custodial sentences as another option — that are not to be found in the Criminal Justice Act 2003, which introduced indeterminate sentences to England and Wales. We are aware that both of those measures are attempts to ensure that people who are prosecuted for relatively minor offences are not subject to indeterminate custodial sentences.

However, we still have a number of concerns. First, the “assessment of dangerousness” as drafted in the Order is vague, and that has also been one of the criticisms of the Criminal Justice Act 2003. We note the omission from the draft Order of measures that are found in the 2003 Act, under which previous convictions of specified offences mean that the court must find that the defendant is dangerous unless it would be unreasonable to do so. Doing away with the presumption of dangerousness is positive, but the draft Order’s addressing of the assessment of dangerousness appears to leave much to the discretion of the sentencing judge. Although the commission has little doubt that judges will use the legislation as intended, if it is to be enacted we would like further clarification in it on the assessment of dangerousness. For example, will every pre-sentence report for every defendant consist of information from probation officers, psychiatrists and psychologists? What happens when there are conflicting assessments? What range and level of information and detail will be provided to the court? Will there be a standard format for reports, and how will those be compiled?

The commission urges that the courts be provided with a consistent assessment process for all cases where an indeterminate sentence is considered. Moreover, even with the minimum two-year tariff, the list in schedule 1 of the Order of specified serious offences for which indeterminate sentences can be given is still broad and does not appear to ensure that the sentencing framework would only be used for the most dangerous offences. Under article 3 of the draft Order, the definition of serious harm is:

“death or serious personal injury, whether physical or psychological” .

The list of offences in schedule 1 ranges from rape and manslaughter to “burglary with intent to … do unlawful damage to a building or anything in it.”

The commission is also seriously concerned about the possible effect that this aspect of the Order will have on prisoners. In particular, we believe that it is vital to consider the psychological impact on prisoners who are in state custody for an indeterminate period. The commission is already concerned about the numbers of people in need of therapeutic care that end up in the criminal justice system. Any sentencing arrangements and decisions about release must be based on fundamental human rights provisions, for example, meeting the threshold of article 3 of the European Convention on Human Rights, under which no one is to be subject to inhuman, cruel or degrading treatment or punishment. Case law shows that article 3 is to be interpreted widely rather than narrowly. In addition, article 10 of the International Covenant on Civil and Political Rights states that:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

The commission frequently finds itself in the position of urging Government to ensure a holistic, inter-agency, interdepartmental approach to its legislation and policy. If the legislation is to go ahead, despite the reservations, it is vital that adequate strategies and resources be put in place across all those state agencies that will be involved in seeing out the provisions of the Order. The English experience shows that such planning is even more vital, and any responsible Government must learn from that experience before extending it to other jurisdictions.

For example, due consideration must be given — in advance — to whether the Prison Service is, or can ever be, equipped to deal with the provisions of the draft Order with regard to meeting the physical and mental-health needs of prisoners who will be in custody for an indeterminate period, and who have to prove that it is safe for them to be released. Is the Probation Board suitably resourced to deal with those releases on licence that are a result of the legislation? If the answer to those questions is no, then the legislation must wait until the answer is yes.

In England and Wales, releases are dependent on defendants completing certain courses while in prison. There has been a serious lack of resources to ensure that those courses are available. In a High Court decision in July, two prisoners won rulings that it was unlawful to imprison them when they could not access courses that were designed to address their behaviour and help them prove that they were fit for release. The verdict on that case concluded that there was a general and systemic failure in the application of the indeterminate sentence for public protection. The Government are appealing that decision. However, such mistakes should not be repeated in Northern Ireland.

In England, there is strong evidence that the introduction of indeterminate sentencing is leading to overcrowding to the point of breaking. Anne Owers, the Chief Inspector of Prisons, said in her 2005-06 annual report that:

“The last five years have therefore seen a depressingly circular movement: from a system unable to cope with the unexpected pressure of 4,000 indeterminate-sentenced prisoners to one equally unfit to deal with twice that number. The inability to progress these prisoners properly through the system is both a casualty of, and a contributor to, our overcrowded prisons.”

The commission is, of course, aware that a sharp rise in the prison population is not being predicted in Northern Ireland. We are aware of the Committee’s earlier discussion about the estimated increase in the number of prisoners being somewhere between 60 and 120 over the next 10 years. However, we believe that there is a need for a contingency plan in case those predictions prove to be flawed. The resources must be made available to ensure that the situations that have arisen in England and Wales are not repeated in Northern Ireland.

The Chairperson:
Under the proposed legislation, there would be no presumption of dangerousness?

Dr Latif:
That appears to be the case, from our reading of it. If a defendant in England and Wales has a previous conviction of the same nature, he or she automatically receives an indeterminate sentence. That does not seem to be the case —

The Chairperson:
That is not the case here. Therefore, there would be greater discretion for our judges to deal with cases on a wider and more flexible basis.

Dr Latif:
Yes, that is right.

The Chairperson:
You referred to article 3 of the European Convention on Human Rights with regard to indeterminate sentencing. I know that the case to which you referred dealt with prisoners, resources and so forth. Have any cases been brought in Britain, under the Human Rights Act 1998, with regard to indeterminate sentencing per se? Has a case of that nature been referred to the House of Lords or the Court of Appeal?

Dr Latif:
I am not aware of any specific cases. I referred to a particular case that was heard in the High Court and that is being appealed by the Government. That case was not brought under article 3 of the European Convention on Human Rights, but with particular regard to indeterminate sentencing. Nevertheless, we know that case law is evolving quickly.

The Chairperson:
Leaving aside the British legal system, are you aware of any cases on indeterminate sentencing in the European Court of Human Rights?

Dr Latif:
I am not aware of any Strasbourg case law. The point that I made with regard to article 3 is that the wide interpretation of it is that “torture” does not just mean the physical sense of that term. It can include the psychological impact of the state’s actions on individuals as well as the physical impact.

Professor McWilliams:
The Human Rights Commission has experience of having to go to court in instances where people who have come to the end of their sentences are still — for one reason or another — being held in prison, indeterminately. We have intervened in those cases and the judges have demanded that those prisoners be released. There are a lot of human rights issues around holding people beyond the term of their sentences. Some of those cases have been quite difficult. They tend to end up being mental-health cases. This issue would raise that concern.

The Chairperson:
If you find any such cases, perhaps you will let us know about them.

Ms Denise Magill ( Northern Ireland Human Rights Commission):
I wish to address three proposals in the draft Order which give us serious concern. All three proposals have certain common elements. One is the failure of the NIO to make an adequate case for their introduction — Mr Attwood referred to that in the Committee’s evidence session with Peter Smith QC. Mr Smith had referred to the lack of evidence; that is something that comes up again and again in this proposed Order. When legislation of this complexity is being considered, by way of an Order in Council, there is a particular imperative for a well-developed policy rationale to be attached to it — but that is simply not there. Measures that have been introduced in England and Wales are being imported here without any statistical basis or real argument, which is very worrying, because they have serious human rights implications.

The second common element of the three proposals is that there is insufficient detail on how they will work in practice. Although a framework exists for measures such as the test purchase power and live links to court, there is no real detail about how they will operate. That is to be included in secondary legislation that we currently do not have sight of.

The proposal for test purchase powers, which was mentioned earlier by NIACRO, would amend existing licensing law so that police officers can direct minors to enter licensed premises and purchase alcohol. There are two conditions to the use of the power: that the constable is satisfied that all reasonable steps have been, or will be, taken to avoid any risk to the welfare of that person; and that a parent has given written consent to the child’s being sent into the premises for the stated purpose.

Like NIACRO, we have grave concerns about the use of the test purchase power. Of course, like all responsible members of society, the Human Rights Commission does not want alcohol to be sold to young people, but we want to address the problem in a way that does not put individual children at risk. The best interests of the child should be at the forefront. We do not consider it to be in the best interest of any child to be used to promote the commission of a criminal offence in an entrapment situation. We cannot see what possible benefit there could be to a child to be involved in such activity. We do not believe that the requirement for parental consent can meet that point. Even with parental consent, in what circumstance could it possibly be in a child’s interest? International standards are very clear in that regard. Article 3 of the UN Convention on the Rights of the Child, by which the UK is bound, states that:

“In all actions concerning children … the best interests of the child shall be a primary consideration.”

Article 16 of the Convention states that:

“No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.”

Article 36 states that:

“States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

We are concerned about how a child would be selected for the purpose of a test purchase. Let us think about that. Which child will end up going into licensed premises to operate the test purchase power? We must think about which parent will give consent to their child to do that. It has to be the lesser of two evils; perhaps a child who has come to the notice of the police and may be the subject of an anti-social behaviour order or other criminal justice dispensation and who, as an alternative, is then invited to assist the police in ensuring a prosecution. We have grave concerns about that.

We have tried to contact children’s rights organisations in England and Wales to ascertain whether concerns have been raised about the practical application of test purchase powers there, but this provision operates in the shadows, and it has been difficult to get any information on that subject.

We do not understand why it is necessary for the police to have that power, rather than mounting their own undercover operations in order to witness the commission of an offence. If it is a targeted operation, and if they are going to pick a particular licensed premises because they know that alcohol is being sold to minors, why do they not pursue prosecutions instead of using a child in that way? The explanatory document, which accompanies the draft Order, provides no rationale for the need to introduce that power.

An obvious risk to the child’s safety arises from this, and one ancillary point is the implications of that particular power under section 75 of the Northern Ireland Act 1998. The NIO equality screening has concluded that the power has no adverse impact on young people. However, given what I have already said, we cannot see how that conclusion could be correct, and we believe that the power should be subject to a full equality impact assessment.

The second matter that I want to address is the issue of live links to court. Mr McFarland referred to this in the previous session. The current practice is that live links can be used for remand hearings for defendants in custody who are awaiting trial. The draft Order proposes to extend that power to two further categories of proceedings. One is sentencing hearings and the other is appeals under the Criminal Appeal Act 1995.

The important distinction regarding those two is that of the defendants’ consent. For sentencing hearings, the direction of the appearance by live link can only be made by the court with the consent of the offender. However, that is not the case for a direction relating to a criminal appeal in the Court of Appeal. Although the live link direction cannot be made without the parties to the appeal having had an opportunity to make representations, the consent of the offender is not required. Therefore, a defendant could consequently be denied the opportunity to be present in court for their own appeal. Again, very little is provided by way of rationale for that decision.

The Human Rights Commission does not want public money being used unnecessarily. The NIO cites merely two reasons for the change: the improved security of prisoners and the reduction of delays in court hearings regarding transport of prisoners to the Court of Appeal. However, no statistics are provided regarding either breaches of prison security or court delays. Therefore, a significant change in what we, as a society, expect from the criminal justice system is being proposed without any statistical basis being provided.

I recently attended Belfast Magistrate’s Court in order to see the operation of the existing live links for remand hearings for those in custody. My impression was that the barriers for the average defendant to fully understand and participate in the proceedings were starkly and exponentially increased by the use of live links. The judge, the prosecution, the defence, probation officers, the defendant’s representative, anyone who wants to be in the public gallery and court staff are present in the court. However, the person most directly affected by the proceedings is not present.

Respect for the criminal justice system and people taking responsibility and fully facing the implications of their actions is often talked about. What I saw reminded me of some sort of appalling video game — a sort of justice by remote control. Surely one of the functions of sentencing and appeal hearings is to allow a defendant to face the court and take responsibility for their actions.

For certain defendants, it is understandable how physical separation from the court would be attractive as it could increase their ability to detach themselves from the proceedings and avoid taking responsibility. It certainly did not strike me as a practice that should be extended to important appeal and sentencing hearings.

Another important extension to the live links has been proposed is regarding the vulnerable accused. That is an issue that we will address in more detail in our written submission. We have concerns for general defendants regarding this, and it is of even greater concern for the vulnerable accused. In relation to the vulnerable accused aged 18 years and under, the NIO claims that by extending that power, it is meeting the requirements of the decision of the European Court of Human Rights, which came about as a result of the case S.C. versus the United Kingdom in 2004. The subject of that case was a vulnerable child who was subject to proceedings in the Crown Court. The court found that the establishment of a specialist tribunal that would help the vulnerable accused was required.

I do not see how putting a vulnerable child with a reduced mental ability in a room on his or her own with a television meets the requirements of that case. That case talked about a potential package of measures to support the vulnerable accused, not simply putting them in a room on their own with a television.

The conclusion is that it is difficult to avoid the idea that this is merely a cost-saving exercise. The commission feels that the extension of live links at such core court hearings, in some instances without the consent of the defendant, may not in all circumstances serve the interests of justice, nor indeed foster respect for the criminal justice system. Article 6 of the European Convention on Human Rights, the right to a fair trial, is clearly engaged in that scenario.

The third and final area relates to interim ASBOs. I am sure that some of you are aware that the Human Rights Commission has a long record of opposition to ASBOs, which dates back to their introduction in Northern Ireland in 2004. It is not that the commission wants to see antisocial behaviour, rather that it wants to see an effective mechanism for dealing with such behaviour, and one that does not have a significant adverse impact on human rights protections. Therefore it is with dismay that the Commission notes the proposal in the draft Order that applications for interim orders which currently exist are to be possible without notice being given to the defendant.

We acknowledge the existence of precedents for ex parte proceedings, we see them in a range of court proceedings; for example, in domestic violence situations. However, this situation is different in that the ASBO proceedings blur the division between civil and criminal law, and the odds are very heavily stacked against the person against whom the order is sought. Hearsay evidence is admissible and the normal criminal standard of proof does not apply. As of October 2006, less than 1% of applications for ASBOs had been turned down in England and Wales. Thus, an interim order could proceed without the person having an opportunity to make their case at that point. They would not have the opportunity to speak at a key part of the proceedings. It seems likely that it would increase the likelihood of a full order being made.

In 2005, there was a judicial review decision in Northern Ireland, because originally, as I said, we did not have the power to make ex parte orders, and a magistrate turned down a request to make an ex parte order in 2004. In the judicial review decision, Lord Justice Girvan reflected many of our concerns, in particular, the use of an apparently civil procedure that can potentially give rise to criminal liability. He considered that the nature of ASBO proceedings increases the imperative against such orders being available on an ex parte basis.

Unfortunately, the NIO has decided to go ahead and seek that power, and, again, as I said in relation to the other two matters, no evidence has been produced to show that the need to serve interim orders has proved problematic. One would have thought that the interference with fundamental rules of natural justice would have required a demonstration of need. Not only has the NIO not demonstrated that need, but I have discovered from discussions with the Community Safety Unit in the NIO that it is not in a position to demonstrate that need. Since 2004, 62 ASBOs have been granted in Northern Ireland, but the NIO is not able to say how many of them originated as interim orders. Therefore, it is seeking an extension of a power that it does not know many times it has been necessary to use to date. The NIO’s request is premature. There has been no proper evaluation of the use of ASBOs since 2004. An evaluation is underway; the NIO and Criminal Justice Inspection are jointly carrying out a major evaluation of the use of ASBOs. This power should not be sought in advance of that evaluation being made available.

The Chief Commissioner:
I was going to ask Ann to sum up briefly, but I am not sure if there will be time.

Ms Ann Hope ( Northern Ireland Human Rights Commission):
As the chief commissioner said in her opening address, the Commission welcomes the statement from the NIO that the proposals are aimed at ensuring that custody is used only for those offenders who merit it. In particular, the commission sees it as a positive development that supervised activity orders will be used instead of custody for fine defaulters. It is strongly of the view that that option should be maximised and that the necessary resources should be in place to ensure that appropriate activities, with the restorative element, are made available. A report by Baroness Corston focuses on alternatives for women in the criminal justice system in GB.

She has listed a number of pilot projects in, for example, Glasgow and Yorkshire, that show that not only do those projects work, but that recidivism is way down in such areas where they are put in place.

The Commission is aware that some people may not see those sorts of activities as appropriate punishment. However, a large body of international standards exists — for example UN standard minimum rules for the administration of justice, UN standard minimum rules for non-custodial measures and the EU framework decision on restorative justice — that support community-based restorative justice. In many cases, effectiveness in minimising reoffending is best met without custodial sentences.

Our own research has shown that there is good reason for punishment not to be seen as the primary goal in the state’s dealing with fine defaulters. The Commission’s investigation into the female prison at Hydebank Wood, a research project entitled ‘The Prison within — the imprisonment of women at Hydebank Wood 2004-06’, stated:

“In explaining fine-default, it is imperative to consider the poverty and deprivation experienced by many women, alongside addiction to, and/or dependency on legal or illicit drugs and alcohol. Economic marginalisation impacts heavily on many women in conflict with the law, leaving them vulnerable particularly if they have responsibilities as mothers or carers.”

Therefore, we welcome the supervised activity orders as one way to deal with fine defaulters and to keep people out of prison.

Mr Weir:
Thank you for your evidence, although it will not surprise you greatly that I do not agree with everything that you have said. Although I do not agree, I can understand the objection to the use of live links in the Court of Appeal but, as I understand the legislation, live links would only apply in sentencing where there has been the consent of the —

The Chairperson:
There is some interference in the transmission. Will people please check their mobile phones and ensure that they are switched off?

Mr Weir:
If I picked you up correctly, when sentencing takes place and a live link is used, the consent of the person who is being sentenced would be required under the legislation.

Ms Magill:
That is correct.

Mr Weir:
I can understand the objection to the use of live links in the Court of Appeal, but I am not sure why you object to its use when the person who is being sentenced, and could be adversely affected, consents to a live link. It seems that a person will have the right to be put in court irrespective of whether they want to be in court for the sentence or not. That seems to be a nonsense of an objection.

Ms Magill:
I take your point, Mr Weir. However, as I said earlier, society as a whole wants people to face up to their responsibilities before the court. Sentencing is not akin to getting married or having a child, but it is a fairly significant experience in people’s lives. Therefore, they should be present in court, rather than sitting in a room on their own in Maghaberry in front of a television screen.

Mr Weir:
It would depend on the situation. Other witnesses have said that the legislation would make live links for sentencing permissible, rather than compulsory. For example, if a victim had to face a person who was charged with serious offences and had certain concerns over the perpetrator, the victim might not want to see the perpetrator in court. The perpetrator might have some degree of recognition of the sensitivity of the situation, and might not want to appear in court. In those circumstances, it would seem perverse to make that person appear in court when everyone is saying that they are happy with a video link.

You said that it is difficult to see a benefit of test purchasing of alcohol. Surely there is a benefit to children as a whole, if the scheme were used as an effective device to reduce the amount of alcohol that is being sold to minors.

Ms Magill:
There would be a benefit to children as a whole, but a risk to the individual child.

Mr Weir:
As regards the individual child, you mentioned that you had consulted with groups in England where the test-purchasing of alcohol has been used. It has been used in Northern Ireland on several occasions, but the law is being regularised. It is used much more extensively in England. You mentioned that when you contacted the groups in England you received a sort of shadowy response.

Ms Magill:
Yes. I spoke to the Children’s Rights Alliance, and I will endeavour to find out more information and, if possible, provide a written submission. However, it said that the issue was in the shadows and that there was no good flow of information about it. It was not the case that the Children’s Rights Alliance had no concerns; just that it had difficulty gathering information.

Mr Weir:
It seems strange that, if there are widespread concerns about a practice that is being used extensively in England, very little concrete evidence of problems has been presented to us.

The Chairperson:
If any further information in relation to the British experiences becomes available, maybe you would let the Committee know. I would like to move on quickly.

Ms Ní Chuilín:
I found it interesting that the NIO said that test-purchasing has no equality impact. The NIO took it upon itself to screen out the equality issue before finding out whether there was an impact. We must carry out an equality impact assessment.

If my interpretation of what you said is wrong, please correct me, but the suggestion seems to be using children to entrap people in off-licences or shops who are selling alcohol to underage people with no suggestion of, or strategy for, using other methods. The cosy initiative, for example, suggests using the names of the premises on carrier bags and shopkeepers being robust about asking for identification. It seems that that is an easier option.

We are talking about education and raising awareness. As a parent, I would not consent to my child being used. I am listening to my instincts, and that plan does not sit right with me. What about using anecdotal evidence from the community? How would you select a child to carry out the plan? That is what my party is querying. For example, if a child purchases alcohol, will he or she be vulnerable? Will that child be selected to carry out the plan? That is a concern. Do you get that strong feeling?

Ms Magill:
Absolutely.

Ms Ní Chuilín:
As regards the equality issue, if you can show evidence from children’s groups in other jurisdictions or countries, especially any equality evidence, we would appreciate seeing that as well. It strikes me that the issue contains too many unanswered questions. I feel that it is the wrong way to approach trying to make alcohol retailers more responsible.

Mr Attwood:
I have only one question, because you gave very strong views to the Committee. I want to check one thing, because my mind drifted a little. Dr Latif said that the legislation should wait in the event of there being insufficient resources to allow it to be implemented as it was best intended. Is that the advice of the Northern Ireland Human Rights Commission?

Professor McWilliams:
Yes. Yesterday, I read the Probation Board’s corporate plan. I know that it has given evidence to the Committee, but I was struck by the interesting way in which it has presented its current ability to deliver services. The plan contains a table of highs and lows. One of the lows is that the board has not been able to deliver on its resettlement plans for the past few years.

After reading that and hearing what was said earlier, I must question how the Probation Board intends to deliver the new proposals if it cannot deliver its current ones.

When we were sitting down to discuss the matter, we realised that it would present a huge amount of work for the Probation Service. I have listened to the witness from NIACRO, Olwen Lyner. She is absolutely correct in that which she has said about the rolling out of funding that has been set aside.

I have written to Criminal Justice Minister, David Hanson, about a concern that the Human Rights Commission had with regard to a recommendation that was made as a result of our research on prisons. That research indicated that there did not seem to be much in the line of resettlement, or alternatives, for women in prison. Our researcher, Ann Jemphrey, picked up the fact that one third of all women prisoners in Northern Ireland are fine defaulters — at a cost of £90,000 per annum for each prisoner. It is an incredibly expensive way of dealing with fine defaulters.

I asked Minister Hanson what the alternatives would be. It seems that £9 million has been set aside, in Britain, for alternatives. That was not with regard to the legislation that is already in place in Britain. Rather, it was put in place as a result of Baroness Curston’s report, which was the result of a thorough investigation of the existing system with regard to that which works, that which does not work, and that which could be economically cost effective.

When I asked where Northern Ireland’s money for alternatives was, I was told that there does not have to be a read across of funding and that there is no read across of funding. Recently, I asked the Probation Board’s director if he was aware that we were missing out on that funding. Obviously, he was aware that this funding was coming to Northern Ireland. Those are real issues with regard to devolution — apart from that which is currently not being provided. Therefore, prison is the back-up for that which cannot be provided in the community. If one adds to that the provisions that are included in the draft Criminal Justice ( Northern Ireland) Order 2007, it seems that the resources are not there. That was Dr Latif’s point.

Mr Attwood:
There seems to be a tension in that the Probation Board is enthusiastic about the new regime and have advised the Committee, for example, that it had been involved in drafting the legislation. Therefore, it seems to have played a quite intimate role with the NIO with regard to the legislation. While Probation Board members talked at length about the issue of resources, they did not go as far as to say that they were keen on all of it, but that it could not be done because the resources would not follow — regardless of the £15 million that is planned at the end of three years. The Probation Board is central to the matter, is enthusiastic about it and, although concerned about money — and have flagged up that issue — they have not putting a red light on it.

Professor McWilliams:
We are aware of that.

Mr McCausland:
As regards to the test purchases, over the years there have been a number of articles in publications — such as the Municipal Journal — which explain how it has worked in practice in Britain. Have you looked at any of those?

Ms Magill:
No, I have not. Thank you for bringing those to my attention.

Mr McCausland:
All of the other methods of addressing the issue — whether they be markings on bags, education, or community initiatives — all need to be place. Many of us hold the view that, in addition to those, test purchases — as a method of detecting the culprits — needs to be in place.

Professor McWilliams:
Mr McCausland will already know, from our evidence, that we operate in the best interests of the child. We would have worries about mission creep once one starts down the road of using children for that particular purpose. Where, then, would the child be used for other purposes? We do not believe that that is the best response to what is an unacceptable practice.

Mr McCausland:
I am only aware of one or two test purchases for alcohol or cigarettes.

Professor McWilliams:
We are aware of entrapment — as you are well aware of the use of children for entrapment in lots of other examples. There are real concerns about that.

The Chairperson:
Clearly there is a difference of opinion. I thank Professor McWilliams for an interesting presentation. If there were any other matters that she would like to commit to paper, for the Committee, I would be happy to receive them. The Committee knows that you will be making a written submission to it, as quickly as possible.

Professor McWilliams:
I wish the Chairperson and the Committee all the best. I sincerely hope that the Committee has much more luck than that of the previous Assembly’s Committees in having their views taken seriously. Since the Committee has given so much of its time to the draft Criminal Justice ( Northern Ireland) Order 2007, I hope that it does not go through unamended.

The Chairperson:
Thank you very much.

We move on now to the Northern Ireland Prison Service. I welcome its director, Mr Robin Masefield, Mr Brian Ingram, head of the resettlement branch and Mr Eddie Finn, head of public protection policy. Members have copies of Mr Masefield’s submission.

You and your colleagues are very welcome, Mr Masefield. You may take as read the document with which you kindly furnished us. You will, of course, want to make some remarks, after which we will move on to questions from the Committee.

Mr Robin Masefield ( Northern Ireland Prison Service):
Thank you. I am grateful to you for making the introductions to the Committee. We are delighted to have this chance to give evidence to the Committee today. Is it correct that we have a total of about 30 minutes?

The Chairperson:
That is correct.

Mr Masefield:
I will speak for no more than about five minutes. I hope that the evidence that I tendered to the Committee Clerk at the end of last week was of value to the Committee. I want to place firmly on the record that I, and the Prison Service, are acutely aware of the significance of the Order. It will radically change the face of the criminal justice system in Northern Ireland. We are getting our heads round what it will mean for the Prison Service.

We are doing a great deal of work with our colleagues in the Probation Service, particularly Brian McCaughey and others. Brian Ingram, who heads our resettlement branch, and I, have regular meetings with him and the Probation Service’s senior management team. There will be another strategic session later this month to work through the ramifications of the Order.

I agree with many of the comments made by our distinguished colleagues from agencies in the criminal justice system, whose evidence to the Committee precedes ours. In particular, I would have used exactly the same words as Kit Chivers who said that the Order will require the Prison Service to step up its game significantly. In a moment I will touch on some areas where we are finding it challenging to do what is required of us at present. Resources and delivery will be major issues for the Prison Service.

The Prison Service is in transition. We are moving from an era in which we concentrated on the security dimension of our role, and we are making strides in moving towards public protection and, in particular, resettlement. It is significant that Eddie joined the service as head of public protection only a year or so ago, and Brian helped to devise the resettlement strategy for the entire criminal justice system, which is three and a half years old. That is how long we have been focussing on those elements of our role.

We picked up on a theme in the evidence from the Northern Ireland Human Rights Commission and others, which was the importance of learning from the experience across the water. Before Christmas, I spoke to Phil Wheatley, who heads the Prison Service in England and Wales, and the head of his interventions unit and two of his colleagues paid us a full-day visit this week, precisely so that we could talk to them and learn from their experience of the implementation of the Criminal Justice Act 2005. We talked about the challenges they have faced and asked for advice on how we should move forward. We are looking outside the service to learn what we can.

A specific example of what we are doing is that the first mandatory two-day development course for all main-grade officers starts tomorrow, and courses will be held for a year or so. The public-protection theme in the draft criminal justice Order is at the heart of that training course. Although there was some training as long ago as 2000-01, there was a significant pause after that. Recently, we have fully addressed the training needs of our staff. During the past 12 months, all middle managers completed a five-day training course on similar issues.

There has been some understandable confusion about prison numbers. Today’s prisoner population is 1,432. Mr Finn, as a former head of the NIO’s statistics and research branch, has played a major role in helping us arrive at a best estimate of the future prisoner population. We believe that, in 2022, 15 years from now, it will have almost doubled, to 2,700. That takes account of the changes due to be made by this draft Order. That is what the prison building programme, which Paul Goggins announced on 18 December, is predicated on: 400 extra places in the next three years, and the prison at Magilligan to be rebuilt thereafter.

Several figures have been quoted, but we think that 120 prisoners or more will come through with public protection sentences after 10, 12 or 15 years. That will be offset to some extent by the use of methods such as the supervised activity order, which will help to provide a diversion to custody, curfews, and electronic monitoring, which is a welcome development for those who do not need to be in prison, when it comes in.

I understand that the Committee has heard from the Northern Ireland Office today about the figure of £14 million; I refer to a figure of £4∙7 million within our own budget. For the Committee’s edification, I might mention that — and you are probably onto this already — the figures do not necessarily add up. On one level, there is quite a simple reason for that. The Northern Ireland Prison Service has a service level agreement with the Northern Ireland Probation Board. I pay the board £1∙3 million each year in total. I anticipate that that will increase over the period of the comprehensive spending review. Mr McFarland was asking about that. The probation service currently plays a role in prisons in helping us to deliver programmes. They provide some programmes; our staff provide some; our psychologists provide some. I have had discussions with Brian McCaughey at strategic level, and we anticipate that that role will increase. It will be a joint exercise. We will retain responsibility, building on that service level agreement, but there will be a financial transfer to the probation service.

That takes me into two critical areas. The Committee has heard evidence of the mental-health challenges that many offenders, sadly, face. The healthcare transfer to the Health Department will be of direct benefit to the service, in that it will lever in additional support in the areas of psychology, psychiatry and general healthcare. That will be very welcome. We have had good discussions at ministerial and official levels with the Department, and we have reached agreement on that. We will be providing additional funding, over and above the existing funding, to provide development money for mental-health issues.

I wrote before Christmas to the Chief Medical Officer. We are in discussion with him about forensic psychologists. That is an area that we would have to flag up if we had a high-low table. We struggle. We have a complement of 15 forensic psychologists; I currently employ eight. A ninth is coming shortly, I hope. To put it crudely, you cannot get them in the British Isles for love or money. There is a simple solution to that. They play an excellent role in delivering the programmes. In particular, they focus on the top-end programmes: the sex-offender treatment programmes and some of the behavioural cognitive skills programmes. We need to think about different ways of working that through. We will be advertising this month for psychological assistants who do not have the forensic qualifications, and we are exploring with the Probation Board the use of probation officers, who have also demonstrated their ability to help deliver programmes.

I want to provide a little reassurance for the Committee on how, together, we can gear ourselves up, not just with respect to the money that is available, but also with regard to the people with the skills to deliver the programmes. That ties back into linkages with England, and the advice that we have received on what has worked and where the investment is best placed to ensure that we do not run into difficulties with the courts such as we have seen across the water, where individual prisoners have not had access to their programmes by the time their tariffs are up for consideration by the Parole Board.

The Chairperson:
In his submission, Peter Smith mentioned that there is no open prison in Northern Ireland. He put a lot of emphasis on that fact. Do you care to comment on it?

Mr Masefield:
I have read the transcript, and I have discussed the subject with him and other life sentence review commissioners in the past. Mr Smith is right. However, we are doing what we can within the existing facilities to remedy the gap. I would like to flag up three areas. Mr Smith referred in his evidence to the prisoner assessment unit in Crumlin Road Prison. It is not a wholly satisfactory facility. It is a small part of that prison, originally built as a locker room where the staff changed. We can, at most, house 20 prisoners there. It is well situated, but the facility is not a fully open prison of the type that I am used to having in the Prison Service in England.

We have Foyleview at Magilligan, where there is provision for 82 places for prisoners who are approaching the end of their sentences. Hitherto, we have not chosen to send life-sentence prisoners to Magilligan. From time to time, we review that decision in order to ascertain whether there are sufficient numbers of such prisoners — probably in the order of 20 to 25 — to ensure that they would not get lost in the wider prison population, at which point there might be value in sending them to Magilligan. When we consider the nature of the population to be housed in the new prison at Magilligan, we will certainly address that question — especially in light of the point that Peter Smith rightly made about finding accommodation that will give such prisoners more responsibility for their own arrangements, catering and suchlike. Interestingly, that is now the case on the new landing that we have created for the women in Ash House, who have their own keys and make decisions about their lock-up times and catering arrangements.

The final element of the jigsaw is the changes that we have made — with which perhaps not all of the life sentence review commissioners are fully au fait — in Mourne House, where women prisoners were previously held. We have two facilities there — Martin House and Wilson House — which currently contain about 25 life-sentence prisoners, who are potentially within the last three years or so of their sentence, and they must meet certain criteria in order to demonstrate that they are ready for release. They have greater independence and responsibility for their living arrangements, and that is as close as we can get to an open prison in the Maghaberry complex, although I accept that the prisoners are still behind a high wall.

The Chairperson:
Throughout these hearings, there has been a tremendous emphasis on the need for additional resources. Obviously, the Prison Service will require additional resources. Are you confident that such resources will be made available for you to properly carry out your work?

Mr Masefield:
Yes, I am 100% confident that if Ministers decree that funds are to be made available in the comprehensive spending review allocation, then they will be. However, I would make two further points. First, that is a fair question to ask because it is not so much about the money but about delivery and the competence of individuals to apply their skills. For example, and going off at a tangent, Maghaberry was built to house 450 prisoners. Currently, it houses more than 800. The workshops are inadequate; I can only put 120 individuals into them daily, and I simply do not have the space to provide additional work spaces. Half of the inmates are on remand, so that issue does not arise, but I am sure that you understand the point that I am making. It is incumbent on us to put any new money to the best value that we can.

Secondly, I referred before to our main grade officers. We undertake trawls for facilitators among our main grade officer staff on residential landings, and that is something that the area chairman of the Prison Officers’ Association, Finlay Spratt, and I completely agree on. Prison officers can add real value by engaging in the delivery of programmes, and I welcome the opportunity to take that forward.

Ms Ní Chuilín:
I also sit on the Health Committee. You are probably aware that there was no discussion there about the transfer of healthcare. Indeed, it was only having given evidence to the Northern Ireland Affairs Committee that we realised that that responsibility was to be transferred, and we still do not know what the budget will be. I am delighted to hear that you will be transferring some of that money, because my own experience of prison is that prisoners are treated as prisoners first and patients second, even when seriously ill. Access to healthcare is always considered to be a privilege rather than a right. I would like that issue to be addressed.

There are huge waiting lists here for people seeking assistance and care for mental-health concerns, which is a human-rights and equality issue. Already, it is being said that prisoners are now expecting to have access to mental-health care and that we will be expected to pay for it. That is not conducive to ensuring that everyone has access to treatment on an equal and equitable basis. It would be useful to know what the money has been allocated for.

My other point relates to service delivery. You already know this, and you have said so: not everyone needs a forensic psychiatrist. Some simply need family support or one-to-one or group work. Any facility or resource that helps people is a good thing. The majority of prisoners are not sexual offenders. It is disproportionate to have eight forensic experts working in that area, considering that, according to your statistics, 70% of the rest of the general population are in need. Within that 70%, it is unclear how many people have personality disorders and mental-health difficulties, such as short- or long-term depression.

The evidence that you have provided is that a high percentage of prisoners have been in care as children, so there is a history there. They have been confined in institutions of one form or another throughout their whole lives. That information, therefore, would be really helpful.

It is not that a head of steam has built up, but, knowing this place fairly well, I think that when it comes to access — particularly to healthcare for prisoners — there will be some bartering, and that will have a huge equality impact. How much money is being transferred for that?

Mr Masefield:
The figure in the estimates is £6 million. That is on public record.

The Chairperson:
What is the £6 million for?

Mr Masefield:
It is for the healthcare of prisoners. We have identified a modest additional provision, which we believe is appropriate. I have been in close discussions with the chief executive of the South Eastern Health and Social Care Trust, which is the lead trust, and the Eastern Health and Social Services Board. I take your point and understand it.

One of the main advantages of the transfer of healthcare relates to the frequency with which prisoners come in and out of prison. We have fewer than 1,500 prisoners in custody at any given time — this is another statistic that can cause confusion for those who are not familiar with the system — but, last year, there were over 6,400 receptions. The average individual stay in prison is three months. Over one third of our receptions may be on remand; others are fine defaulters, who only serve a few days. Many of those who are remanded in custody will get bailed and go back to the community. Therefore, as well as the custodial side, there are huge advantages for the community in having that joined-up healthcare. That is really what we are striving to achieve through the transfer.

Ms Ní Chuilín:
Do you understand the point that I am making?

Mr Masefield:
I do.

The Chairperson:
Due to time pressures, I ask colleagues to keep their questions short.

Mr Weir:
One of the concerns that has been raised is that changes to sentencing policy, in particular with regard to remission, will, to quote NIACRO, adversely affect the “cornerstones” of offender management and have a potential adverse affect on the behaviour and attitude of prisoners. How do you respond to the criticism of the potential changes?

Mr Masefield:
The intention is — and this comes from the English experience — to provide prisoners with an incentive to engage in offending behaviour programmes and other remedies. You rightly referred to such basic elements as education, literacy and numeracy — even the ability to fill in a benefits form or a job application. Sadly, a fair number of those who come into our care cannot manage that level until they have gone through the process and been helped by it. There is a real opportunity there to take that forward.

Mr O’Dowd:
There are two points that you have broadly covered about the affect on discipline and morale among prisoners with indeterminate sentences. However, the idea that our prison population is going to grow by 100% by 2015 is deeply depressing, because it says to me that our society has failed. If we as politicians have not created a new society by 2015, we will have a prison population of 2,700.

However, if we can help create a new society, then that population should fall, because children who leave primary and secondary school with no numeracy or literacy skills, and people who have mental-health problems and personality disorders that are not detected at an early age, and people with a range of other issues can end up in jail. Although some do end up there because of pure badness, the rest are being failed by society, and if the prison population is increasing by 10% a year, that is depressing. If I am still involved in politics in 2015 and we have a prison population of 2,700, we will have failed.

Mr Masefield:
I have two quick points to make.

First, I hope that you will still be involved in politics in 2022, because, for the record, it is then, 15 years from now, when we think the prison population will have virtually doubled to 2,700. Secondly, you are absolutely right, and that is why Paul Goggins and I, with our colleagues in the Probation Board, are working in a lot of areas. Healthcare is one example which is in the forefront, but also the Department of Education and the Department for Employment and Learning are exploring opportunities to address those very issues that lead to individuals sadly ending up in custody after going through various damaging processes earlier. A co-ordinated, holistic strategy for dealing with offenders would have real advantages, and the Prison Service is up for playing a part in that.

Dr Farry:
I have two questions. First of all, and arising out of Mr O’Dowd’s point about the numbers in prison, do you have any projections of the cost implications of running the Prison Service over that time frame? As the responsibility transfers to the block grant alongside all the other competing demands that the Assembly will have to address, that is an important consideration in determining what can be delivered.

Secondly, as you address both the implementation of the legislation and other issues that need to be dealt with, such as the mental-health needs of prisoners, do you anticipate that the unit cost of dealing with prisoners is going to increase in Northern Ireland, as well as the number of prisoners? I am conscious that Northern Ireland already has a much greater unit cost per head compared to England and Wales, because of our small size and issues such as the separation of prisoners in Maghaberry.

Mr Masefield:
I can give you a little comfort on that. I am confident — touch wood — that the unit cost will reduce. We are bringing in, not cheaper staff, but a different range of staff, better equipped to meet the needs of the current service. Consequently, we will be recruiting operational support staff this spring at virtually 50% of the salary levels of the existing main-grade officers, and we will be exploring other opportunities like that.

Dr Farry:
Will that be cancelled out by the greater costs involved in dealing with each prisoner through this legislation?

Mr Masefield:
I am confident that there is sufficient funding for the duration of the comprehensive spending review period.

Dr Farry:
That is only three years. We will leave that point sitting, Robin.

Does the Prison Service have a view on whether under-18s should go to Hydebank Wood or to Woodlands Juvenile Justice Centre in Bangor? Does the Prison Service have a view on that, and what is the current situation? Is it that virtually all under-18s are going to Bangor? How many of that age group do you have in Hydebank Wood at the moment?

Mr Masefield:
I could possibly give the Committee a very short answer to that in a couple of days’ time. It is hugely striking that when I joined the Northern Ireland Prison Service three years ago there were something in the order of 36 juveniles — young men under 18 — in Hydebank Wood. Today there are nine, and seven of those are on remand. That is encouraging, although that can always change when one is away from the post for an hour or two. There are no females under 18 in Hydebank Wood. Those are positive steps, and I pay tribute to the Youth Justice Agency for the facilities and the good work done at Woodlands.

The Chairperson:
The argument is over the presumption that they should be in Bangor rather than Hydebank. Can you comment on that?

Mr Masefield:
I suppose I am trying to avoid getting drawn into commenting on the substance and policy of the draft Order. I take comfort from the way in which the judiciary is interpreting the current provisions and opportunities available to it, and the further scope that would be afforded to it by the draft Order. One of your contributors — it may have been Kit Chivers — recognised that there will probably be a handful of individuals for whom, sadly, Hydebank Wood is the right place, because they are highly dangerous.

The Chairperson:
I think that it is a common case — in certain circumstances, some juveniles will be there. However, the point is about the presumption.

Mr McCausland:
The proportion of prisoners with mental-health problems or personality disorders is given in your submission as being 70%. Can you provide some additional information so that we can get a broader picture of the scope, scale and breakdown of mental-health problems and personality disorders?

Mr Masefield:
I would love to give you an essay on that subject. I will try to be brief. In my experience, there is a spectrum; it is a grey area. I think that most of my colleagues who know the criminal justice world would probably now accept that. Quite often, an individual will show signs of having a mental illness and a personality disorder, and, sadly, many have substance misuse or addiction issues, too. Throw all that into the equation, and, as Roy McClelland says, it is a pretty toxic mix, especially in the custodial environment.

Our last fully comprehensive survey was carried out three or four years ago. I could quote from its findings. I am talking to John Compton about carrying out, as a matter of priority, another needs analysis and a more up-to-date assessment of those issues. I am very keen that we should do that now. This morning, I received a paper that was produced by the Scottish Prison Service last month, and there may be value in benchmarking against that. Sadly, over half of young offenders probably have personality disorder issues, however they are defined — individual psychiatrists will perhaps take slightly different slants on that. Of course, the numbers of offenders whose clear mental illnesses could mean that they would fall under a different part of the legislation and need custody in a mental-health context are much smaller.

Mr McFarland:
I am curious about the deliverability of all of these proposals. Life used to be simple: prison officers wandered around with keys on their belts, and they locked people up. That was their job, and it was clear what their role was. The Probation Board dealt with prisoners when they came out of prison and tried to help them to re-establish themselves in society and looked after them, and so on.

It is a completely different ball game now. The Probation Board are in court during the trial and sentencing. They have been tasked with delivery of areas that the Prison Service was supposed to be dealing with, but, from what members of the Probation Board have said, was not perhaps dealing with that well, for whatever reason. As Mr Attwood said, the Probation Board now sees itself as building a fairly substantial empire in the middle of Prison Service territory. Do you foresee conflicts and psychological difficulties arising as Prison Service staff adjust to a whole new way of operating? I wonder about potential clashes if one group — which has been at the back end in this matter — now builds an empire and interferes in the daily lives of those in the Prison Service? How do you see these proposals playing out? Are they deliverable?

Mr Masefield:
Yes, they are deliverable. Currently, there is something in the order of 30 probation staff working in prison, and their roles are well defined. They are laid down under the service level agreements.

You make a very good point about our staff. Without caricaturing, the average member of staff is around the age of 50. He may have 20 or 25 years’ service — sadly, they will predominantly, but not exclusively, be male. Many have a certain mindset from having served in the Maze Prison or Crumlin Road. Some are excellent at embracing the new approach to public protection and working with prisoners, while others are being given developmental and training opportunities.

I certainly think that, during the transition period, there will be real value in working more closely with the probation services and getting their people to work with us. I genuinely mean that; I am not just saying it. The Committee should come to Magilligan — and I would be delighted if any Committee members took up that offer — to see the prisoner development unit. It is integrated; it has probation officers, eight Prison Service staff, Northlands drugs development workers, Alcoholics Anonymous, psychologists and a parenting class that is delivered by Barnardos. It is a genuinely multidisciplinary facility, and it works extremely well together in the delivery of the programmes. That is a model on which we can build.

Mr Attwood:
I am tempted to follow up Alan’s question and ask what the position of the Prison Officers’ Association is, but maybe you would decline that question. This may be deliverable, and there is not doubt that you are one of the people most likely to deliver. However, you did not answer the Chairperson’s question about resources. You said that if the Minister says that there is money in the comprehensive spending review for the proposals, then there is money. That is the answer to a slightly different question. You heard the Human Rights Commission say earlier that if there are not enough resources for the proposals the legislation should not be implemented. You may have heard NIACRO say that there is a danger that this could become a massive preventative programme. Various figures have been bandied about — £14 million has been mentioned today — and you are clearly trying to redirect some of your resources into this project. Everyone is saying that, without resources, the proposals will not be realised.

This is critical, and how you answer this could be critical to how the Committee views the whole thing. Given your knowledge of all the other agencies involved, the restraints of the comprehensive spending review, the size of the prison population, and the number of prisoners who will be coming through preventative schemes of one sort or another, are you telling the Committee that you sense that the money is — or will be — available to fully deliver the proposals? That is different to what is in the comprehensive spending review or what the Minister has promised. Is it your sense that the money is going to follow this new regime?

Mr Masefield:
Yes, Mr Attwood.

Mr Finn and I have worked very closely with, and huge respect for, our counterparts in the Northern Ireland Office who worked on the proposals. Some of the changes that they have made, not slavishly following the English Criminal Justice Act 2003 on points about dangerousness and the discretion of the judiciary, will be hugely helpful. Mr Finn has put an immense amount of work into analysing the ebb and flow of the prisoner numbers, and the costs associated with that, for each of the next 15 years. Therefore, we have done a lot of work, not all of which is necessarily apparent above the surface — nine tenths of the iceberg is below the surface, as it were — to identify, to the best of our ability, the cost and implications of the programme.

The Chairperson:
It must be taken into consideration that Ministers come and go.

I thank you for a very interesting submission and discussion. Your two colleagues did not get the opportunity to speak, but I am sure that they made a full contribution to the written submission and I thank them for coming.

Mr Masefield:
Thank you.

The Chairperson:
I invite the representatives from the Police Service of Northern Ireland to come forward. I welcome Superintendent David Boyd, who is the head of operational policy; Mr John Connor, head of the social policy unit; Inspector Rosie Leech, from the roads policing development unit; and Inspector Gary Atkinson.

Superintendent David Boyd (Police Service of Northern Ireland):
Thank you for giving the PSNI the opportunity to brief the Committee on the enforcement of legislation on drinking in public places and provisions relating to quads and other vehicles causing a nuisance. First, I will set out the PSNI’s involvement in the consultation process to date and put forward the views of the PSNI top team in respect of those matters. I have prepared a short, five-minute presentation setting out those views.

The PSNI were included in the working group that was set up in 2002 to review the drinking in public by-laws. During the meetings of the working group, the PSNI representative highlighted all of the issues and, as such, there was nothing new in our formal response to the consultation paper that was issued in September 2003. At the time, the service acknowledged that by-laws based around the current legislative powers could not deliver enforcement that would deter alcohol-linked antisocial behaviour on the streets and in public places. From a policing perspective, it was clear that the most effective method of controlling such behaviour required measures that could be introduced only following the passing of new primary legislation.

The proposals in the initial consultation paper stated that both district councils and the police would have the power to enforce the new legislation. At the time, the command team in PSNI supported that approach. In January 2006, correspondence was received from the NIO asking us to reconsider that issue and to confirm whether we were still of the view that enforcement powers should be extended to councils. That was because of concerns around someone other than a police officer enforcing the legislation. Upon receipt of that correspondence, the opportunity was taken to have the issue raised with the PSNI command team. The PSNI’s view was that the arguments for proceeding with the legislation, as drafted in 2003, with joint council and police enforcement powers, were compelling and supported the PSNI vision of making Northern Ireland safer. Full consideration was given to proceeding on the basis that only the police should have the relevant enforcement powers. However, those arguments were outweighed by the counter-arguments supporting the contention that councils should take the lead in enforcement.

Having reconsidered the matter, the PSNI continues to take the view that it would be more appropriate for councils to take the lead in enforcement in this area. The enforcement of drinking by-laws is not seen as a core policing issue, and it may be helpful for me to explain the reasons for that. The Committee will no doubt be aware that, every year, the Northern Ireland Policing Board and the Police Service publish an annual policing plan. The policing plan details the objectives set by the Secretary of State and the Policing Board and describes the performance indicators and targets relating to those objectives that the Chief Constable is accountable for. Those objectives, performance indicators and targets are set out under a number of policing domains and are intended to provide a better focus across the range of activities undertaken by the police. The objectives that are set out under each of the domains provide a balanced overview of policing, while placing the emphasis on meeting the policing needs of the public. District commanders take account of that policing plan during the preparation of local policing plans, which are produced and published separately. Local policing plans also give the opportunity for district commanders to consult with their respective district policing partnerships and others to ensure that the needs of the local communities are addressed. Two regional Assistant Chief Constables (ACCs) review the performance of the districts and district commanders to ensure that targets in the policing plan, and their respective local policing plans, are being achieved. Finally, each of the district policing partnerships (DPPs) will monitor each district’s performance through DPP meetings.

During the consultation exercise for the policing plan, which was published by the Northern Ireland Policing Board in April 2007, enforcement of drinking by-laws was not identified as a policing priority. There will always be competing pressures for resource prioritisation, affecting the resource availability to any particular enforcement area. For that reason, it is important to target those areas that district commanders are being held accountable for.

Currently, all district councils have by-laws that make it an offence to drink alcohol in designated areas. Those by-laws give councils, and the police, the power to take the names and addresses of offenders for prosecution proceedings, which are taken forward by the council.

There is no consistency of approach as to how an area is designated and the subsequent enforcement of by-laws. Police have no power under council by-laws to remove alcohol from persons over 18. Individuals under that age are dealt with under the Confiscation of Alcohol (Young Persons) Act 1997. With regard to people drinking in designated areas, police note their names and addresses and prepare a statement of evidence, which is forwarded to the appropriate district council that decide whether to instigate proceedings.

The new proposals shift the focus of the offence from consumption of alcohol in designated areas to targeting antisocial and disorderly behaviour associated with drinking. Where there is reason to believe that a person is or has been consuming alcohol in a designated place or intends to do so, it will be an offence for a person to refuse to comply with requests by a constable not to consume alcohol or not to surrender anything in his or her possession that the constable believes to be alcohol.

The proposed legislation requires the surrender of alcohol. A person who refuses to comply with the requirements of an officer will commit an offence. The seizure of alcohol will be possible where the possessor has been arrested.

Under the new proposals, councils will be under a statutory duty to consult with police, public and other relevant agencies before a designation order is made. In addition, there should be a robust evidence of alcohol-related nuisance or disorder with an assessment that the problem will continue unless the powers are adopted. Consultation with the local police will form an important part of that evidence-gathering assessment. The PSNI warmly welcomes that partnership approach in relation to designation of an area.

The new proposals apply solely to police-only enforcement powers. The PSNI command team’s view is that councils should take the lead on enforcement as they do in other areas such as street trading, dog fouling, noise, litter and smoke-free legislation. Police will only get involved if council officials get into difficulty. We will respond and deal as appropriate — as we would with any other agency or member of the public if there was a breach of the peace or assault, for instance.

There is no reason why similar arrangements cannot be put in place with the introduction of the proposed legislation. There should be a direct link between the designation of an area, the enforcement of the legislation relating to that designation and the bringing forward of a prosecution case against offenders. The PSNI welcomes any joint powers of enforcement, with district councils taking the lead and police only becoming involved in joint pro-active operations with council enforcement teams where necessary. With that joint approach, there is a potential for greater impact on the problem. There will be more people with respective powers for monitoring the situation.

It was noted during the consultation period in 2003 that the majority of councils indicated that they would like a continued or strengthened enforcement role. In addition, council enforcement officers in the course of their other duties might come across breaches of the proposed legislation, and they could take the appropriate enforcement action as necessary. That may also result in limited police resources being used elsewhere.

Article 68 makes provisions for the introduction of a fixed-penalty scheme. With regard to the administration of the scheme, it is envisaged that once a police officer issues a fixed-penalty notice, the administrative burden will fall mainly to the Court Service. If a person defaults on a fixed-penalty notice, the Court Service will inform the local council, which will prosecute the person for the offence. However, there is concern in the PSNI that the requirement on police officers to provide statements and attend court, etc, will be a drain on police resources and will remove officers from front-line duty.

On the issue of enforcement of drinking in public places, I emphasise our view that district councils must take the lead in the enforcement of the drinking by-laws, thus ensuring full partnership in working to deal with the issue. All organisations have a role to play, and that will have the full support of the Police Service.

I know that I have to comment on nuisance vehicles, but I propose that now is a good time to stop to take questions.

The Chairperson:
It is clear that you believe that the onus to take the lead on this issue should be the councils. You do not regard the policing of designated areas as a front-line police duty, but surely if a police officer is out on patrol and comes across that sort of situation he or she will regard it as his or her duty to act.

Superintendent Boyd:
That is correct, but you heard me say that I welcome joint enforcement powers, with the council taking the lead. If joint enforcement powers are established, therefore, and an officer happens upon a situation, he or she will intervene as necessary.

The Chairperson:
What do you think about a blanket ban on alcohol consumption in public?

Superintendent Boyd:
Simply, when carrying out their duties, the PSNI must comply with the Human Rights Act 1998. In doing so, our actions are legal, necessary and proportionate. Taking that into account, any such blanket ban would punish the responsible for the actions of the irresponsible. Therefore, such a ban is neither necessary nor proportionate.

The proposed legislation, as it stands, allows for an officer to exercise his or her discretion. Therefore, any person who wishes to enjoy a drink in a park for example, should not be affected by the legislation, provided their actions do not amount to any sort of antisocial behaviour.

Mr Weir:
That point is maybe slightly misunderstood. Everyone would accept that there should be interventions when antisocial behaviour is taking place. Leaving that aside, there is an issue of whether drinking should be banned in all areas, except those that the council has deemed it permissible to drink in, rather than having a list of streets in which drinking is banned.

At present, local councils have a problem trying to cover all of the areas as there is page after page of lists of streets that drinking has been banned in. I know that that was a problem last year for North Down Borough Council. That can obviously create problems for either council officials or perhaps the police, as there potentially have to be signs up in every street to which the ban applies. Without such signs, the police officers or the council officials may be unsure as to whether a particular street is a designated area.

It should not be a question of whether a police officer should have discretion to intervene; any police officer should intervene in circumstances of antisocial behaviour. No one would object to a situation of a family sitting around a picnic table having a glass of wine or something of that nature; nor is any one suggesting that there should not be discretion in such circumstances.

The issue is whether there should be a long list of areas in which drinking is banned, which could maybe cover three quarters of the streets in a particular town, as opposed to a general presumption that no alcohol should be consumed in any public place except those areas that councils have designated. That is the issue, rather than it being one of proportionality.

Superintendent Boyd:
There are issues with what has been outlined. For example, police currently go along and enforce alcohol-free zones. However, the persons involved in the drinking may simply move down the street into a nearby alleyway or another street and carry on drinking.

The current proposal means that councils are under an obligation to consult with police and others such as traders and local residents to identify where the problem is. That hones the enforcement tools that are available to police and councils to deal with the issue, rather than simply implementing a blanket ban.

Mr O’Dowd:
Thank you for your presentation. This issue has the potential for various Departments and the PSNI to attempt to protect their resources and budgets, which is perhaps understandable. That is also the case across a range of issues.

There is now a situation in which the most significant low-level nuisance and low-level crime on our streets is probably caused by alcohol. It seems to me that you are saying that the councils should take the lead on this issue.

Superintendent Boyd:
That is what we are saying.

Mr O’Dowd:
You are asking council officials to deal with drinking on our streets. Therefore, you are asking civilians to approach groups of youths who have consumed alcohol to ask them to move on. That, to me, sounds ridiculous.

Superintendent Boyd:
Currently council officials are asked to go into licensed premises and deal with smoke-free legislation.

Mr O’Dowd:
The circumstances are totally different. I worked for years as a barman, and working in a bar is not always easy. However, not for a pension would I approach a group of youths drinking on a street and ask them to move on or ask for names and addresses. What will happen is that the PSNI, when working through district policing partnerships or being contacted by local councils or local representatives, will say that drinking on streets is not its problem but the councils’. In reality, it is a low-level crime that leads to higher-level crimes. If the PSNI took a more active role against this, other crime would be reduced. You have not given me a convincing argument that councils should take the lead role in this.

Superintendent Boyd:
Let me explain. Before I send Inspector Atkinson out to carry out a function, I will risk-assess what the officer has to do. As his employer, I will ensure that he is adequately trained and equipped to carry out that task. He should have personal protective equipment. The PSNI says that councils should take the lead in this, that they are the employers and that they should risk-assess and train and equip their staff accordingly.

Mr O’Dowd:
This boils down to budgets. The PSNI has been through its budget and does not want to take on this responsibility. The PSNI is asking councils to hire a private policing service, instead of using the local police service.

Superintendent Boyd:
I have had the opportunity, as an operations manager in a district, of standing at DPP meetings where local councillors have stood up and asked what the police are doing about people drinking in designated areas. I have pointed out that, as it stands, the legislation provides for both police and council enforcement. I have quoted the numbers of people who have been reported to local councils and have asked the councils what they are doing about it.

Mr O’Dowd:
That comment is fair enough.

Superintendent Boyd:
We tell the council how many people we have reported to it. When we ask how many the council itself has detected, we generally receive the answer zero. The problem is that there is no consistency in the approach of councils to this issue. Some councils operate a “two strikes and you are out” rule. Offenders receive a yellow card the first time they are reported, and on the second, they are prosecuted. Other councils prosecute on the first offence.

The Chairperson:
There is some interference. Will members and witnesses check their mobile telephones and turn them off; they are interfering with the sound recording.

Mr O’Dowd has completed his questions; I will move on to Alan McFarland.

Mr McFarland:
I am rarely at odds with the police. I served for four years on the Northern Ireland Policing Board when it was first set up, and fought valiant battles in setting up the ethos of policing. I am worried. The reason that this issue is being discussed has nothing to do with drinking on the street. We are not talking about groups of youths sipping sherry and discussing a play by Shakespeare.

[Laughter.]

That is not why this topic has come up. Rather, we have a major problem with yobbos getting tanked up and behaving antisocially. The witness will know better than anyone that antisocial behaviour has a high priority in the plans of the Chief Constable and the Policing Board. We are not discussing alcohol consumption, but antisocial behaviour. I seldom agree with the philosophy of John O’Dowd, but I do in this instance.

Ms Ní Chuilín:
[Inaudible.]

Mr McFarland:
One cannot send a council official, dressed in Robocop armour, into Bangor on a Saturday night, where 25 people are absolutely legless. He would run around saying I am Mr Jones from the council and you chaps are not supposed to be doing this. He would get absolutely panned if not killed, and then the police would be called in.

I know that the police have enough difficulties in Bangor on a Saturday night. It seems strange that you are not keen, as a general psychology, to get a grip of something like that. Any member of the public will tell you that drunken youths behaving antisocially is a major headache. This is the first opportunity the PSNI have had to go and sort all these people out. I have spoken to police officers and they are dying to get a grip on it. The PSNI is as embarrassed as everyone else is at not being able to confiscate alcohol and stop them acting in an antisocial manner.

Now is the opportunity for the Police Service to get to grips with the problem. I am slightly worried that responsibility for it will be passed back to councils, which are not equipped to deal with it.

Superintendent Boyd:
They are certainly not equipped.

Mr McFarland:
Councils are not equipped to deal with the problem because, by and large, people fear and respect the police. When a police officer approaches someone with a bottle, that person will show respect unless, perhaps, he or she is already too tanked up. When people are asked to move on, and they know that the police officer has the power to take the bottle from them and lock them up, they are likely to pay more attention than they would to a council official who asks them to stop their behaviour. It is psychological. I am worried that, if police start to back off in those situations, that will also have a psychological effect.

The Chairperson:
I must stop you there, Mr McFarland. You have made your point robustly. I would like to hear a short response from Superintendent Boyd, because that is similar to the point that was made by Mr O’Dowd.

Superintendent Boyd:
The proposed legislation introduces police-only powers of enforcement. The police believe that councils should lead and that there should be dual powers. Police will accompany council officials when necessary in joint, proactive operations to deal with antisocial behaviour. However, let me say this, folks; dealing with antisocial behaviour is not just about people drinking in designated areas — there are other issues connected with it, such as people urinating in the street; litter; people’s coming out of public houses when drunk and being loud, but not disorderly, and so on.

Ms Ní Chuilín:
Rioting is also a problem.

Superintendent Boyd:
My operational experience, for example in Moy where there are several pubs in a small village and many people living nearby, is that the way to deal with it is to work in partnership with others in order to ensure that hot-food bars are closed; buses and taxis are available to take people away; door staff are adequately trained; bins are provided so that people can dispose of litter; bottles are removed from people when they leave licensed premises, and so on. Therefore, a raft of measures can be put in place to deal with antisocial behaviour. The legislation is just one tool. The police believe that through joint powers, councils should lead and the police will assist.

Mr McCausland:
At a local level, I have as much contact with the police on antisocial behaviour as almost any other issue. There is a serious problem in North Belfast and in other constituencies, as members have indicated. I examined the questionnaire that asked people what they thought the priorities should be for policing in their areas. I asked myself whether I should put down antisocial behaviour or the drinking laws as my first priority. I found it difficult to make a choice because the two are interrelated. A large percentage of antisocial behaviour is alcohol related. The fact is that for most people, enforcement of the drinking laws is a priority, whether it is on the list or not.

To return to the point that was raised earlier by my colleague, at present, the problem is that when several streets are designated — and the number of designated streets increases every two years or so — the people who cause the problem simply keep moving around the corner into the next street during the interim. Eventually, after around four years, the police might catch up with them. Is it not much simpler to have that approach, bearing in mind that there must be an element of discretion and common sense — as there is in the enforcement of any law — and that there must be special provision made for places, such as restaurants in the centre of Belfast, in which, although it is still in a public area, it would be appropriate for people to be able to sit outside under an awning, perhaps?

Bearing in mind those two exceptions, the presumption should be that the streets in residential areas should be non-drinking areas. If there were a presumption that streets were generally non-drinking areas, with certain limited exemptions, would the situation not be much simpler? Problems, such as that of people ripping signs down and saying that alcohol cannot be taken from them because there is no sign, would be avoided and would save councils a fortune in putting up the signs.

Superintendent Boyd:
The situation would be simpler. However, how would that be perceived by members of the public? Would it be perceived that they could not go to the park on a Saturday and consume alcohol with a picnic?

Mr McCausland:
The issue is of common-sense enforcement. I go through parks pretty regularly, where I see lots of drinkers in corners.

I have not seen many people putting up a card table and setting a bottle of vintage champagne down on it. That does not happen. There are few occasions such as Proms in the Park in most city parks. Not many people sit in Ballysillan Playing Fields having cucumber sandwiches and a glass of vintage wine. It does not happen.

Superintendent Boyd:
Are you not creating the problem of having to produce a list of places that fall outside the blanket ban? What would happen if, for example, a council decided to promote a community festival in a local village, such as the music festival in Warrenpoint, at which there is much drinking on the street? Would the council have to apply for an opt-out?

Mr McCausland:
Is it not much simpler to have certain specific exemptions that can be applied for occasionally? Most people who are plagued by the problem, and many policemen on the ground who face the difficulty of trying to enforce the laws as people dodge round corners, would say “Well done”.

Superintendent Boyd:
I have given my view.

Mr McCausland:
We will agree to differ.

The Chairperson:
There is a marked difference of opinion. Do any other members wish to come in on this?

Dr Farry:
If it were to fall to councils to enforce the legislation, would there not be a danger that the council officers would have the capacity to tackle only the more minor breaches? The greater the number of people who congregate and drink alcohol, the less likely it is that a council officer could intervene, because he or she would have to wait for the police to arrive to mount a joint operation. It is a perverse situation when minor breaches of the law are tackled rather than the more serious ones.

Superintendent Boyd:
I take your point. Council officials would probably be more inclined to intervene during daylight hours. However, there are joint powers and joint enforcement. The police will attend when necessary to assist council officials to tackle such situations.

The Chairperson:
We will leave it at that. There was a further point about nuisance vehicles. As members are familiar with the provisions in the Order and we are running out of time, just detail the main points.

Superintendent Boyd:
The PSNI welcomes the introduction of the legislation as it brings Northern Ireland into line with GB. This power has been available to forces there for some time. As the Committee is aware, the issue of quads and scrambler motorcycles being driven in parks and on roads, pavements and waste ground has been well documented. The problem is generally regarded as an issue of public nuisance. However, people have been tragically killed or maimed as a result of such activity.

The legislation provides the police with an effective solution, namely the power to remove the vehicle, after which the behaviour will cease. In practice, the police will not seize such vehicles unless, and until, the rider has been issued with a warning for riding the vehicle in a manner that causes “alarm, distress or annoyance”. I am certain that the legislation will receive public backing, and its effectiveness has been established in Great Britain, where the problem has been almost eradicated in many areas.

Inspector Rosie Leech (Police Service of Northern Ireland):
Those of us who work in road-policing development see the legislation as an effective tool. We are frequently asked what the police can do about the problem, and our current powers are limited.

The Chairperson:
Will the legislation remedy that limitation?

Inspector Leech:
Yes. I want to reassure you that there is a degree of moderation and that people will not have their quad or scrambler seized if it is their first offence. A warning will be issued that will be recorded against the individual in case they are detected breaching the legislation again.

The Chairperson:
Do members have any further questions?

Mr O’Dowd:
Do you want any additional powers to address this issue? It is a difficult one to deal with and has caused problems for years.

Inspector Leech:
We have benefited from recent case law that declared any quads, mini motos, and so forth that are not used for agricultural or forestry purposes, to be mechanically propelled vehicles.

In that way, those vehicles are brought under the umbrella of the legislation that is available to us, and would have to be insured. A separate power to deal with uninsured vehicles used on public roads is available to deal with those issues. The users of those vehicles, such as mini-motos, would not necessarily have to be causing alarm or distress. We will be pretty well covered from a legislative point of view when the power to seize uninsured vehicles is granted. The difficulties are practical ones; quad bikes and scramblers can be used in places that the police patrol car or Land Rover cannot go. We may have to work out our tactics in future; we may be looking for quads ourselves . [Laughter.]

The Chairperson:
There are no further questions. Thank you very much. That was a very useful session. If any other matters arise in the course of our discussion we will come back to you.

Superintendent Boyd:
Thank you for the opportunity to put our points of view to the Committee.