40.

Prof Dickson: As far as I understand it, a judge in England sets the tariff in a way which ensures adequate retribution and deterrence against others committing the same offence. The two key concepts are retribution and deterrence. After that period has elapsed, it becomes possible for the person to be released early. There are differences in England which I do not feel qualified to talk about, although perhaps Ms O'Conor can. These concern the treatment of mandatory and discretionary life prisoners and young people detained at Her Majesty's pleasure. The merit in the draft Order is that by and large it harmonises the law for all three categories - I have adverted to one or two differences vis-à-vis young people. That is greatly to be applauded, because it goes beyond the position in England, which will continue to distinguish between mandatory and discretionary life prisoners.

41.

As to whether this new Order will comply fully with the European Convention, we have indicated that in several respects it may not. For example, retaining a discretion for the Secretary of State to set the tariff rather than requiring a judicial body such as the Life Sentence Review Commissioners, if indeed it is a judicial body for the purposes of the Convention, is a flaw. The vagueness of such terms as "appropriate stage" and "expedient in the public interest" is highly questionable in European Convention terms.

42.

Mr R Hutchinson: You may have answered my question. Do you think it is right that a politician such as the Secretary of State should have the final say as to whether someone is or is not released?

43.

Prof Dickson: No, we do not. That is exactly our point. The treatment of people who have been sentenced to imprisonment should be a judicial matter - at least the length of the sentence should be a judicial matter. Certainly the executive authorities should be responsible for the running of prisons and ensuring that prisoners have their rights protected. We feel strongly that the length of the sentence should be a matter for a judicial authority.

44.

Mrs E Bell: We share the concerns you raised in your submission in paragraphs 8 and 10. We also felt that the fact that

was very harsh. We are concerned that the standard of proof required by the Commissioners is not specified. Do the draft Order's licence and recall provisions raise any potential human rights concerns, especially in relation to Articles 8 and 9 of the European Convention on Human Rights? If the Order were enacted, would it comply with the highest human rights legal standards concerning life sentence prisoners?

45.

Prof Dickson: It is always difficult to be categorical about whether an actual or proposed law would or would not comply with particular provisions of the European Convention, because it often depends on how the provisions are applied in practice. They may sound fine on paper, but if they are applied in a certain way, they might contravene the Convention. Taking Articles 8 and 9 of the Convention, which protect the right to a private and home life and the right to freedom of conscience and thought and so forth, it is possible that certain licence conditions, for example, the hypothetical situation where a prisoner should not associate with a particular individual, would be a breach of that prisoner's right to a private life under Article 8.

46.

It is less easy to imagine a breach of Article 9, which protects the right to freedom of religion, conscience and thought. We have concerns that the provisions you have drawn attention to would breach Article 5 of the Convention which protects the right to liberty and security of the person. If somebody can be recalled to prison on a very trivial matter, perhaps on the evidence of an informer or somebody who wants to frame the individual and is making unsubstantiated allegations against a prisoner, then that person's liberty could be at stake. The general principle in international human rights law is that a very high standard of proof has to be met before a person can be deprived of his or her liberty.

47.

The length of the licence and the lack of clarity about standards of proof also give us serious cause for concern in relation to Article 6 of the Convention, which specifies that in all matters determining a person's rights and obligations, that person must have a fair hearing. That means having a proper standard of proof and, going back to Mr Paisley Jnr's question, knowing the case against them and having a chance to answer it.

48.

Mrs E Bell: It is the difference between the legislation as it is written and our responsibility to see that it is correctly enacted and implemented.

49.

Prof Dickson: That is why we suggest inserting a phrase such as "in compliance with the prisoner's Convention rights" as a safeguard.

50.

Mr B Hutchinson: I would like to ask about recall. It seems very clinical to talk about who should be responsible for the length of the sentence and how it should be done. First, regarding trivial breach, are you saying that we should have some standard of proof for the Commissioners to go by and, if so, are there examples in Europe or elsewhere that we could draw on?

51.

I am not sure who decides if someone is recalled. Do the police make a request to the Secretary of State, or is it the Commissioners? My understanding is that it remains with the Secretary of State, who deals with political prisoners even though he has never admitted it. I think the Secretary of State is the person who holds the licence. I have a licence signed by the Secretary of State.

52.

As for the length of time and who is responsible, are we talking about punishment or rehabilitation? If we are talking about punishment, the court can set the tariff and we can forget about everybody else. However, if we are talking about rehabilitation, then a time frame must be set.

53.

Prof Dickson: It is difficult to point to other international examples regarding the standard of proof. As far as I know, the new system for dealing with complaints against the police force in Northern Ireland has a sliding scale for standards of proof. I will double-check this. The more serious the alleged breach of discipline and consequences for the police officer if found guilty, then the higher the standard of proof that has to be applied.

54.

It might be possible to introduce a comparable provision in the Order. To recall somebody to prison for the rest of his or her life on the basis of an unsubstantiated complaint has very serious consequences for that prisoner, so the standard of proof applied ought to be quite high. Whether or not you would want to make it as high as "beyond a reasonable doubt" is something we could debate. If it were to be as high as that, then the full panoply of fair trial provisions that were applied when the prisoner was first tried would have to be re-applied, and that would be expensive and time-consuming. The standard ought to be commensurate with the consequences that the prisoner stands to suffer.

55.

Who decides to recall a prisoner? The Order is unclear in Article 9. It seems to indicate that the Secretary of State can recall a prisoner in emergency situations, whereas the general position would be that the Life Sentence Review Commissioners would recall the prisoner. It is strange that the Order appears to make no provision to require the Secretary of State, who recalled a prisoner in an emergency in the first place, to submit the matter to the Commissioners for double-checking.

56.

As for rehabilitation, it is certainly the case that the international standards applying to prisoners specify that the main purpose of imprisonment should be rehabilitation. Once the required period for retribution and deterrence has been served, then the sole purpose of imprisonment is rehabilitation. The prisoner should be released once the rehabilitation period is over. We would agree with the implication in your question that a prisoner on licence should be seen as somebody who is going through a rehabilitation process.

57.

Mr J Kelly: I think you have covered Article 11, and the five points made during the lifer's campaign. You have also covered legal representation at reviews and commissions. Could you be clearer on the stated criteria for release?

58.

Ms O'Conor: I think that the European Court has moved towards risk analysis - and Prof Dickson has already covered this to some extent. Once the period of deterrence, punishment, and retribution has been served, it then becomes a question of risk analysis. It becomes a question of whether there is any threat to the public by the release of the person concerned. That is probably the criterion that would comply with international standards.

59.

Ms McWilliams: On that point, Prof Dickson said earlier that public interest was an expedient matter.

60.

Mr Dickson: That relates to the recall provision in paragraph 12 of our submission, where we state that the phrase "expedient in the public interest" should be replaced with the phrase "necessary to protect the public from serious harm". In relation to the initial release of the prisoner, paragraph 6 of our submission states that the phrase "serious harm to the public" ought to be defined more clearly.

61.

Mr J Kelly: Have you considered the wealth of information which states that after eight years prison becomes debilitating rather than rehabilitating.

62.

Prof Dickson: There is research to suggest that.

63.

Mr J Kelly: Is there any reason why the Commission should not contain peers - people who have been in the position of having served life sentences?

64.

Prof Dickson: The Human Rights Commission has not considered what an appropriate tariff would be in any particular case. We can do so, if the Committee would like us to, although international standards are virtually non-existent.

65.

We have not discussed membership of the Life Sentence Review Commission. However, I could not imagine us having any difficulty with people serving on the Commission who have been released on licence. The Order currently disallows that. Our view would be the same as our views on the Police (Northern Ireland) Act 2000, where we say that people who have served their time ought to be eligible for appointment to the policing board or the district policing partnerships.

66.

Mr Attwood: Did the Northern Ireland Office consult with the Human Rights Commission before the draft legislation was issued?

67.

Prof Dickson: No. We received the first version before Christmas, at the same time as everyone else.

68.

Mr Attwood: Has the Northern Ireland Office formally asked you to submit your views like everybody else?

69.

Prof Dickson: Yes.

70.

Mr Attwood: Would you agree that the biggest structural flaw in all the proposed procedures concerns the powers retained by the Secretary of State in terms of role, discretion, and involvement in the management of life sentence prisoners?

71.

Would you agree that in your submission, at paragraphs 3, 4, 11, 12, 14 and 17, the main theme is that the Secretary of State, for all the intention behind the proposals, retains major intrusive powers?

72.

Prof Dickson: Yes, that would be fair. I would not like to elevate one criticism above all others, but that does seem to be a particular breach of Article 5 (4) of the European Convention.

73.

Mr Attwood: Are there any other international conventions, codes or directives, other than the European Convention, that should inform how this legislation is drafted in terms of either a fair process or the rights of prisoners?

74.

Prof Dickson: There are. The Human Rights Commission looks at the full range of internationally accepted rules and principles for the protection of human rights when assessing actual and proposed laws, policies and practices in Northern Ireland. In this regard we would cite documents such as the UN's International Covenant on Civil and Political Rights, the UN's Standard Minimum Rules for the Treatment of Prisoners, and the Council of Europe's Standard Minimum Rules for the Treatment of Prisoners. It has to be said that none of them are specific on the detail of what we are discussing today.

75.

Mr Attwood: Is there much added value in them as opposed to the European Convention itself?

76.

Prof Dickson: There is some added value, for example, in relation to Mr B Hutchinson's point about rehabilitation. The European Convention says nothing about rehabilitation, but I think I am right in saying that the UN's International Covenant on Civil and Political Rights stresses the need for rehabilitation.

77.

Mr Attwood: The document is very helpful.

78.

Mr M Murphy: What laws are there in the Republic of Ireland regarding life sentences? How do they differ from ours?

79.

Prof Dickson: I am afraid you have me there, Mr Murphy. I do not know what the Republic's law on life sentences is. I can check it out and provide information for the Committee if you would like me to.

80.

Mr Paisley Jnr: You have tried to plug a number of loopholes, but under Article 7 there seems to be a major loophole regarding compassionate grounds. The Secretary of State might at any time release a prisoner due to exceptional circumstances. He is required to consult with the Commissioners unless circumstances render such consultation impracticable. Do you think that this legislation should spell out what the exceptional circumstances should be and also when there should not be consultation with the Commission?

81.

Prof Dickson: The Human Rights Commission has not considered this in detail. As a general rule we would like to see phrases such as "exceptional circumstances" elucidated in some way, either in the legislation or in accompanying codes of practice. It is good practice for guidance to be given on how powers should be exercised without being prescriptive. So the short answer to your question is yes.

82.

The Chairperson: I thank you for your contribution. It seems to me, that a lot of work remains to be done in a very short space of time. I know that we would like to bring you back, but I do not know if time will allow us to do that.

MONDAY, 5 FEBRUARY 2001

Members present:
Mr Savage (Chairperson)
Mrs E Bell (Deputy Chairperson)
Mr Attwood
Mr B Hutchinson
Mr R Hutchinson
Mr J Kelly
Ms McWilliams
Mr M Murphy
Mr Paisley Jnr

Witnesses:
Mr B Fulton ) Probation Board for
Mr A Darnbrook ) Northern Ireland

83.

The Chairperson: You are both very welcome. As you can tell, we have a tight deadline this morning. Thank you for the written submission to the Committee. Do you want to make a presentation?

84.

Mr Fulton: I will say a few words of introduction to make the link to what we have submitted. I will, first, introduce the two of us. I am Assistant Chief Probation Officer and I have responsibility for services to prisoners, released prisoners, and prisoners' families. I am accountable to the Chief Executive and through him to the Probation Board. Alan Darnbrook is a probation manager with particular responsibilities in this area. That is why we have come to respond to you.

85.

The Chairperson: Both of you have a big responsibility.

86.

Mr Fulton: It does not weigh lightly, in that sense.

87.

I will set the Probation Board for Northern Ireland in context. The Probation Board was set up in 1982, but before that it came under the Ministry of Home Affairs, and then under the Northern Ireland Office.

88.

We have had a presence in prison for 35 years now, both inside and outside, and we have been involved with life sentence prisoners during all that period. We have supervised a proportion of those life sentence prisoners released from that time, right back from the end of the 1960s. That, in a sense, sets our experience. That experience has also meant that the Probation Board has made some comments about the actual structure. When you get to the end of our paper, we comment separately on the structure and what our experience tells us and on the role that we would have to play within that structure and what implications that has.

89.

This has been part of a stage over the last couple of years. The Criminal Justice Review was looking at this issue, and the Probation Board had an opportunity both while it was considering that to speak to it and also after it publicised last spring. The board made a response to that review report. We did, in a sense, put up a model - maybe that is a bit fancy - or framework.

90.

When it came to the response to this particular Order, I suppose that is the shape that we are using in that context. Our experience over that period pointed the Probation Board towards looking for a more open system, a system that was more transparent, in which everybody could see what the roles were. We comment on some aspects of that as we get into how that is translated because each of those issues about openness, in a sense, is addressed in the new Order. You may make judgements about how well they are addressed, but they are addressed.

91.

From the Board's point of view, a large amount of our functions are in relation to courts. We are at home in that situation, and we are used to dealing with that. The Probation Board was looking for a much more judicial input into the actual process for life sentence prisoners. The setting of a tariff or the way in which the judge making the original sentence actually does that is important.

92.

It is also important from the point of view of the prisoner and all those dealing with that person in the prison system. Up until recently it has not always been clear how long a tariff would be. Therefore there has been a lot of uncertainty all through sentence.

93.

We were looking for a system that separated those factors. It is important to ensure that the length of time, retribution and deterrent elements are marked in a way that allows more focus on risk and rehabilitation. Retribution and deterrence are core in our work in helping prisoners to prepare for freedom. Once that process is complete, it is important to provide a report that gives that kind of risk assessment. If the Probation Service is to be involved in supervision, it must have the opportunity to ascertain what type of programme it will follow.

94.

The Chairperson: With regard to the rehabilitation of life prisoners, what are the strengths and weaknesses of the draft Order?

95.

Mr Fulton: There are many strengths in the draft Order. We would be able to move on from our current position. The strengths are to clarify the length of time the court is setting before release would be considered and the opportunity then to look at the release. The board wanted those stages to be judicially grounded. The first two stages are clearly grounded in the court. The third stage involves the independent body. If the independent body can specify the way in which it will operate - it can be assumed that the structure is to be established - a set of rules must be in place. Some of the weaknesses can be addressed when those rules are set out.

96.

Mr J Kelly: Is the issue of discretionary life sentences to juveniles adequately covered? Take the Matt Lundy case.

97.

Mr Fulton: Are you talking about discretionary life sentences?

98.

Mr J Kelly: Yes.

99.

Mr Fulton: My understanding is that there are certain safeguards relating to young persons who are sentenced at the Secretary of State's pleasure. Such cases will be referred at certain ages. The Secretary of State may, irrespective of the tariff, refer such cases to the commissioners, and there will be special treatment for under-18s, as I understand the Order.

100.

There have not been many people in the discretionary lifer category in Northern Ireland. There are few in the overall system. There is likely to be an increase in that category, but there are good safeguards for the under-18's. The system here is limited, first because of the small number of prisons and, secondly, as a result of the comparatively small number of young prisoners in those institutions that maintain them for a long time. It is likely that they will be incorporated in the adult system in some way.

101.

Mr J Kelly: In the sense you are part of the establishment, but is the Board actively involved in attempting to resolve the issues arising from your role in the Probation Service?

102.

Mr Fulton: We see our role in the Probation Board as walking a middle path. It is our role to mediate between the requirements of the courts and the system that we operate, and the needs of the community on the outside. We also have to ascertain how we can provide a pathway for a past offender who wants to work in such a way that the risk is manageable in the community. Our role allows us to find pathways in the system.

103.

Mrs E Bell: I have already declared an interest. My questions will reflect that. In paragraphs 29 and 30, it says

and

104.

One of my concerns is that the licence is in force until death. What role does the Probation Board see itself as having? The way you have spelt it out in the paper is to try to mitigate the situation. Do you think that it needs to be looked at again, and perhaps amended, before the draft Order is implemented in order to see whether we could make arrangements so that the licence does not have to continue until the person dies? If he is rehabilitated, he should benefit from that.

105.

That obviously involves extra work which will impact on you. Have you considered the extent of the impact, or are you happy enough to go along with this and act as liaison between the two?

106.

Mr Fulton: I will let Alan Darnbrook answer part of that. From our point of view, the difference is between the licence and the supervised part of the licence. The licence being in operation is one issue, and that is pressure on anybody in that kind of situation. Our experience has been with the supervised element of the licence. Alan Darnbrook might say a few words about how that tends to work, because even under the current system we can review that.

107.

Mrs E Bell: Do you think this draft Order improves that situation?

108.

Mr Darnbrook: As was pointed out in paragraph 33 of the paper, we want to include a provision for the licence conditions to be withdrawn at an appropriate time when we feel that the person is fully rehabilitated and the risk is low enough that they do not pose any risk to the community. We achieve that by regular supervision by a supervising officer, regular monitoring of the supervision, assessments at intervals throughout that period and bringing in other agencies as required. Under the present system, a proposal is not normally made until after about five years of supervision. This varies according to the individual circumstances. If progress has been made to our satisfaction and the person is no longer a risk to the community in any form, we would then make a submission to the Secretary of State for the licence conditions to be lifted. From then on, we do not have any further statutory involvement with that person. However, we do offer ongoing voluntary contact and support, should that person require it at any period from then until death.

109.

Mr Fulton: With some of the offences with which we will be dealing, it may take longer to clarify whether the person is likely to leave that kind of offending behind. There is research which shows a longer cycle, and we have to keep that in mind as we look at what the time span might be. In some situations, it might make sense to hold on to that kind of possibility for up to 10 years.

110.

Mr B Hutchinson: You have just said something which I may have misunderstood. Did you say that you had made recommendations to the Secretary of State to have people's licences lifted after five years?

111.

Mr Darnbrook: No. On occasion we make a recommendation that the supervision elements of their licence be varied after a time when we are satisfied that they have reached a stage of stability.

112.

Mr B Hutchinson: In what kinds of cases do you have this supervision?

113.

Mr Fulton: They are not the cases under the Sentence Review Commission. It is predominantly cases that have been dealt with by the Life Sentence Review Board, which are the de-scheduled -

114.

Mr B Hutchinson: You are talking about non-political cases?

115.

Mr Darnbrook: Yes, absolutely.

116.

Mr B Hutchinson: Mr Fulton, you talked about safeguards for those sentenced at the Secretary of State's pleasure if those people are under 18. What are those safeguards? What is your opinion of recalls? Are there contradictions between the recalls and the court? Do you believe that too much attention is paid to trivial breaches?

117.

Mr Fulton: I will answer the last one first. Recall is a difficult issue. As a supervising agency we need to be able to act quickly, and we need someone to make that decision. We are more than happy to deal with that, as in our other areas we go to court if necessary. We are quite happy to be as accountable as we need to be. We think that, whatever the legislation, it needs a mechanism whereby a quick decision can be made, and we have been in that situation and have sought that kind of decision making before.

118.

Of course, the quicker people can go before the Commission the better. Our understanding of the legislation is that the Secretary of State will refer cases like that to the Commission. If it is not that kind of emergency, then my understanding is the legislation means it will go to the Commission before a decision about revoking the licence or about recall takes place. We accept that it should not be happening on poor or flimsy evidence and that we have to be more accountable about what we present. We are happy with that. We will look for the Commissioners to lay down requirements on what those hurdles will be before that happens.

119.

Mr B Hutchinson: Have you come up against contradictions in the court? For example, have there been instances of the magistrate saying that there is no case to be answered but the licence has still been revoked?

120.

Mr Fulton: Revoking the licence would not be a decision for the court at that point. Our understanding is that in cases that we have supervised there would be a decision about whether there was such seriousness. Quite often if the case was awaiting the outcome of the court, then review would take into account what the sentence was and the directions of the judge or magistrate before deciding on that. That is the kind of case which, if it is awaiting that decision, could be referred to the Commissioners for a decision.

121.

Mr B Hutchinson: I ask because I checked back on some material released by the Probation Board in the early 1990s. It was claimed that a number of people were taken to court on assault charges, the magistrate threw them out and said there was no case to be answered as at least three of the cases were self-defence, yet all those people had their licences revoked. I was wondering what statistics you have on that.

122.

Mr Fulton: We estimate that we have had five recalls in 20 years in that supervision element. There are aspects of this legislation which will make us more accountable in that situation, and there are also regulations that will make the Executive more accountable in its decision making.

123.

If we can return to the cases of the 18-year-olds, I think it is not so much the facilities but the fact that they are separated, the tariff is likely to be lower in that age group and they would be reviewed at an earlier stage. There is an issue in there which I think has to come after the actual legislation.

124.

The current system has some flexibility in it regarding the preparation for that kind of staged release. Certainly young people need opportunities for that to happen. However, it is not clear at this stage how we find a mechanism to ensure that this can take place in the new situation. The decision made by the Commissioners is about release, and that will be binding. There appear to be safeguards for young people.

125.

Mr Paisley Jnr: The Order that we are considering asks you to provide, although it does not mention you, certain things in terms of the rehabilitation of an offender. I want to look at some of the practicalities and financial realities of that request. The courts, Commissioners and Secretary of State have demanded certain things that you are obliged to deliver. Have you the financial wherewithal to deliver such things on your current budget? Furthermore, can you give us a ballpark figure as to how much it will cost to deliver this request in order to achieve your statutory obligations? This includes your proposals - which are outlined at point 31 - regarding the withdrawal of a licence. Are those proposals in any way financially driven? You are saying that there are certain cases where the licence should be withdrawn - for example, there may be a concern in the community that, for certain crimes, there are high reoffending rates and people could drift into other areas where there are not adequate rehabilitation levels.

126.

Moving on to the issue of the Commissioners, there is some suggestion that they should not be former members of the Executive, civil servants or prison governors. Should the Probation Board in Northern Ireland be in any way a part of the Commission team to consider the financial and practical realities of what is being asked of it?

127.

Mr Fulton: From the Probation Board's point of view, the Order does not change the resource issue in itself because the number of prisoners that are in the system and were likely to come through under the old system, whichever part of legislation it is. Therefore resource in itself is not a block to us with regard to how this is to be implemented. Like any public body there are occasions when our resources are limited, and we must make priorities. This is high priority work and in the context of decisions that are to be made about funding this issue is one that would come at the top of the list.

128.

There is currently £720,000 which is transferred from the Prison Service to the Probation Service so as to provide a service in prison. That will be one of the areas where the expectations will increase. We with the Prison Service would wish to provide individual and group programmes which assist prisoners to deal with the factors of risk and how they would reduce those factors. So there is a pressure there. There is further pressure in relation to multi-agency. At this time, we do employ psychologists. We have a relationship with two forensic psychiatrists in Northern Ireland. In terms of post-release, multi-disciplinary back-up, expectations will rise and there will be an increased need. Resources are not a prime worry to the service in relation to this Order.

129.

With regard to the Commissioners, the Board is keen that there should be a separation between those making the decisions and those who provide the information.

130.

The Board's feeling is that, at this point, we should not have staff of the Probation Board for Northern Ireland as Commissioners. We should obviously like their expertise to be represented among the Commissioners in some fashion, and we make some points about how that might be achieved. However, it is fundamental that we are happier coming to provide information, while others who are not involved make their decisions, challenging us about how we made ours.

131.

Mr Paisley Jnr: This brings us back to the issue of resources. Are any of your proposals financially driven?

132.

Mr Fulton: No.

133.

Mr Paisley Jnr: If you had the resources, would you propose it?

134.

Mr Fulton: No, it is not driven by that. It is an area of work where the decision is not made by an individual, but by a number of staff members. One examines the continuing possibilities in a case. Is the person involved living a safe life? Is there a likelihood of their doing anything? However, we currently have 22 supervised life sentence prisoners, and there are 70 to 80 in the prison system. That situation can be dealt with within our resources, allowing at least two probation officers on each case with a package of supervision. The numbers are workable at this stage.

135.

Mr Paisley Jnr: Of those 22, how many cases would each probation officer take on?

136.

Mr Fulton: They would be spread out geograph- ically, but it is an area of work where we certainly endeavour to have a member of the probation staff working with under 20 cases. We aim to achieve a ratio of 1:15 in that kind of situation.

137.

Mr Attwood: The Human Rights Commission referred to its doubts in relation to the non-disclosure of confidential information to prisoners going before hearings. Do you have any concerns about non-disclosure of information to the Probation Board for Northern Ireland in its input into those arrangements?

138.

Mr Fulton: Not at the moment. We have no reason to doubt the information we receive regarding the nature of offences.

139.

Mr Attwood: Have you had any concerns in the past about that sort of information?

140.

Mr Fulton: As far as I am aware, no.

141.

The Chairperson: If the draft Order were enacted, how would the work of the Life Sentence Commissioners impact on that of the Probation Board for Northern Ireland?

142.

Mr Fulton: I feel the earlier answers about resources covered most aspects. The main concern now will be how they wish to do business. A certain part is set out in the rules saying what a probation report to the board would achieve, but one of the main issues for us is finding ways to measure risk. What are their objective measurements? The expectation is that the Commissioners will begin to set out their understanding, which we must translate into our working practice. In our development of standards in relation to a new Order such as this, the Commissioners will be an important source of information on how we should do the work.

143.

The Chairperson: The Commissioners and you will work together very closely on all these issues.

144.

Mr Fulton: In the sense that they set the rules, yes. There will be a certain distance because of our different responsibilities, but, as the Commissioners develop their role, they will clearly set out how they determine risk, and we shall take that back to the Board and use it in our work.

145.

Ms McWilliams: It is perhaps a difficult question for you to answer, but much of this will not change the nature of your work. Your experience has been in the risk of reoffending as well as in rehabilitation. You argue that the courts will look at retribution and detterence, so your major role will be on risk of reoffending. At the moment, you clearly have a great deal of expertise on that.

146.

You could see a conflict of interest, if you, on the one hand are trying to provide information, and, on the other hand, are trying to provide decision making. In relation to Mr Paisley Jnr's point about decision makers, you suggest that you be excluded from the decision making of the Commissioner's role and simply be an information feeder. How much credence is given to that role?

147.

Mr Fulton: In these cases it is given a lot. Of course, it is not always possible for us to know exactly what others think, but in the context of what we see of decision making in the current situation, the risk and management plans that we have put up, or the fact that they are not there, would be significant in deciding whether someone was ready for release. It is acknowledged that we have the role of going into the community with somebody, and it is taken into account if we are uncomfortable about that management plan.

148.

Ms McWilliams: Have you managed to analyse how accurate you have been? What percentage have you got wrong?

149.

Mr Darnbrook: I suppose that is reflected in the figure that Mr Fulton mentioned earlier. Over this time there were five requirements to recall because of risk behaviour in the community. It could possibly be argued that we may have got something wrong in those cases, although it must be pointed out that the time that each had spent in the community varied considerably. They had, in the main, reached considerable stability and were well on the road to rehabilitation when certain issues in their lives came up and caused this difficulty. Overall, looking at that figure, we have been reasonably successful in our assessments and the level of error has been quite low.

150.

Mr Fulton: There is bottom line in that we are relieved to be able to sit here and say that nobody under supervision has recommitted a capital offence. It is important in our work in this area that it is rare in the UK and in European situations for that kind of reoffending to happen.

151.

Mr Paisley Jnr: I find your answer very interesting. You say that an offender or a person under rehabilitation can be well on the road to rehabilitation when something peculiar or not obvious has caused them to reoffend. Do you think it is right, under any circumstance, to propose the removal of supervision if something unforeseen on the horizon could upset an offender and make him or her reoffend? Should there not be constant supervision until that person is deceased?

152.

Mr Fulton: That line could be taken, although reoffending is not what Mr Darnbrook talked about. In the majority of cases it has been behaviour which has been of concern, rather than court decisions or a new offence. The balance of the judgement about the stability in a community is made on what supports are around.

153.

That is the balance of the judgement which is made about what the stability in a community may be. What are the supports for a feedback mechanism if someone's behaviour deteriorates? The Probation Board would be much more reluctant to recommend the end of the supervision period if someone lived an isolated life with no bounds around them.

154.

Mr Paisley Jnr: Again, this is resource driven. If you had the resources you would not need to make that proposal at all.

155.

Mr Fulton: It is about acknowledging that someone has started a new life and is getting on with it. In some cases it is obvious within a year of someone being released from prison that that person is so different from the person who committed the original offence. Part of our work is helping to lay down the foundation stones of that new life with a job or accommodation. Some people move on, but then some life event may hold them back and the Probation Board has to try to get them through that. Your point is very important, but quite often it is about looking at the range of supports and extended supports that they have, and whether there are feedback systems around.

156.

Mr B Hutchinson: You gave us very scant details about why the person went back into prison, but you said there were only five people in 30 years, which suggests that it was five out of quite a number. To use resources to track or supervise those people for the rest of their lives would be a total waste. We could be spending the money on preventative work, rather than on rehabilitation.

157.

Prior to the ceasefires there were 375 Loyalist and Republican life sentence prisoners on the street. In my understanding, only two were put back in prison and not for acts of violence. They were brought back on very scant evidence, which was contradicted by the courts. I am not questioning what you have said, but you should give us those statistics in writing. We do not need names but we need to know the total number of people of whom five reoffended, how long those people were in the community, and how long the supervision lasted. Hansard is reporting this and the statistics you have provided are not complete. If someone comes up with another question, those statistics could look foolish. If we could have those in detail, that would solve all the problems.

158.

Mr Fulton: As we said at the beginning, we were referring to those people who were under our supervision.

159.

The Chairperson: Thank you for your contribution this morning. I know you have a very difficult task, but are you making progress on the situation?

160.

Mr Fulton: We are well bedded in. It is an area of work which is planned and lasts for a long time. It is different from other areas of work which are much more immediate. It has a stability even in our agency with regard to the way in which we allocate resources.

TUESDAY, 6 FEBRUARY 2001

Members present:
Mrs E Bell (Deputy Chairperson)
Mr Attwood
Mr Dalton
Mr B Hutchinson
Mr R Hutchinson
Mr J Kelly
Ms McWilliams
Mr Murphy

Witnesses:
Prof J Jackson ) Queen's University of Belfast (speaking in a personal capacity)

161.

The Deputy Chairperson: Thank you for coming, Prof Jackson, perhaps would you speak to your submission first and the Committee will ask questions afterwards.

162.

Prof Jackson: Thank you for inviting me to give evidence on the issue of life sentences. A paper was faxed to you this morning by my colleague, Prof Livingstone, although you may not have had an opportunity to read it yet. I will outline briefly some of the points in his paper.

163.

Prof Livingstone and I broadly welcome the draft Life Sentences (Northern Ireland) Order 2001. We do so for two reasons. The first is that the Order takes a principled approach towards the issue of life sentences for prisoners. By that I mean that the Order makes it clear that the liberty of the subject is a matter which primarily should be the concern of independent judicial figures rather than politicians.

164.

Obviously, I say this with some deference to members of the Committee, who are politicians. The point many people have been making for some years - for this Order reflects an approach we see being taken throughout Europe - is that sentencing and the larger issue of releasing life prisoners are better left in the hands of independent judicial figures rather than politicians. The worry, as regards politicians being involved, is the perception that political decisions or influences will govern their views. Where an independent judicial figure sits alongside experts, there should at least be some satisfaction that true impartiality governs these most important issues.

165.

As someone who has taken part in the Criminal Justice Review, I would say that the Order is a broad endorsement of the view expressed in the review that these issues are a matter for judicial figures. The Order makes the point that there are two distinct issues in life sentences. One is what the tariff should be. By "tariff", I mean the term necessary to ensure deterrence and retribution - in other words, the length of time a prisoner deserves. The Order clearly says that that should be a matter for the judge, who, when sentencing someone to a life sentence, should state what he or she feels the tariff should be.

166.

The second issue is protecting the public. Even when someone has served the tariff, he may still be a danger to the public for he may not be seen to have sufficiently reformed, therefore still posing a threat. That issue also requires an independent judgement. The Order says that, in future, that should be the decision of the Life Sentence Commissioners, who have been set up to replace the old Life Sentence Review Board, which formerly made recommendations exclusively to Ministers and the Secretary of State. The Commissioners will obviously decide the question of risk to the public in their own right. For the above reasons I feel that the Order is a principled approach to the issue.

167.

Another reason why I have broadly welcomed the Order is that it brings the area into compliance with human rights legislation. The United Kingdom has now incorporated the European Convention on Human Rights into its law, and it is clearly important that all its regions be seen to comply. That means not only complying with the Convention itself but also with Strasbourg court decisions which have emerged from it.

168.

In several decisions, the European Court of Human Rights has made it very clear that matters regarding discretionary life sentence inmates are for an independent court body to decide under Article 5.4 of the European Convention. Recently, because of the Thompson and Venables case in England, this category has come to include sentences relating to juveniles under the age of 17 and the issue of whether they are a risk.

169.

The European Court of Human Rights has not yet addressed the issue of mandatory life sentences and whether an independent judicial figure should take the decision to release prisoners.

170.

Experts more knowledgeable than myself have pointed out that the thrust of the recent decision in the Thompson and Venables case is that decisions relating to the issuing of a tariff are sentencing matters, which really ought to be taken by a judge. The decision on the Thompson and Venables case, in relation to issues such as release, seems to go in the direction of saying that such matters should be for judges and not politicians.

171.

I want to make those two basic points. First, the Order is a principled approach to sentencing and, secondly, it follows a human rights approach. A number of details could be raised about the drafting of the Order, and Prof Livingstone has provided the Committee with a paper 'Comments on Life Sentences (Northern Ireland) Order 2001', which contains detailed points in pages 2 to 4 examining the way in which the Order has been drafted.

172.

I do not know how valuable it would be for the Committee if I go into those issues in detail. There are one or two problems with Article 5 of the Order, which is not totally clear. The Article seems to suggest that people may still get life tariffs; that the judge, when sentencing someone to life, may say that the person should serve life to satisfy deterrence and retribution.

173.

Some people say that that is not the right approach, particularly for juveniles, and that it does not go along with some other Human Rights Conventions. It is an argument of principle as to whether juveniles should be given a life tariff, and it should be taken up. In any event, there are difficulties with the drafting of Article 5 of the Order in that it seems that even though a life tariff has been given, the Secretary of State may later refer the case to the Life Sentence Commissioners. That would happen when the Secretary of State takes the view that it would be appropriate to do so, but it seems to me that the circumstances in which it should happen are not terribly clear.

174.

There are other detailed points in Prof Livingstone's paper. One relates to the substance of the test in the Order that the Commissioners have to apply. The Order suggests that the test is whether the Commissioners are satisfied that it is no longer necessary for a person to be detained in order to protect the public. That seems to be what is laid down in Article 6(4)(b) as the crucial test for the Commissioners. However Article 3(4)(2) suggests that the Commissioners should take other criteria into account, one of those being the issue of rehabilitation. Is the Order clear enough about what the tests should be? Some Commissioners might take the view that while someone is no longer a threat to the public he might be better rehabilitated inside prison rather than outside it. If they take such a view, the suggestion seems to be that they should not release the prisoner. However, Article 6(4) seems to suggest that the only criterion is that of risk; is the person a risk to the public?

175.

I feel there is a problem about what the tests should be. There may also be an issue as to where the burden of proof should lie. At the moment, it is for the prisoner to show that he is no longer a risk to the public. That is not stated clearly in the Order, and there is an argument that - given that this is an issue of liberty - we should be discussing whether the onus should be with the Secretary of State to make the case that a person remains a threat to the public, and not vice versa. Other points are made in Prof Livingstone's paper, which I will address, but I was asked to give a brief introduction and I am conscious of the time.

176.

The Deputy Chairperson: You have raised many concerns that we identified. It may be useful for Members to ask some questions to expand on that. With respect to human rights, does the current law in Northern Ireland governing the sentencing to life imprisonment and detention at the Secretary of State's pleasure comply with all relevant human rights law?

177.

Prof Jackson: No, it does not comply, particularly with regard to people being detained under the Secretary of State's pleasure. The Thompson and Venables case made it clear that issues involving the sentencing and release of prisoners are matters for a judicial body. At present, that is not the case. Although the Life Sentences Review Board can make a recommendation to the Secretary of State, it is merely a recommendation. At present, the Board is not an independent judicial body that would satisfy the requirements of the European Convention.

178.

The Deputy Chairperson: Does the current law in Northern Ireland governing the release on licence of those on life imprisonment and those being detained at the Secretary of State's pleasure comply with all relevant human rights law?

179.

Prof Jackson: No, for much the same reasons, such as the recent European Court decisions.

180.

Mr B Hutchinson: I agree that politicians should not make these decisions. However, I am not sure that there is any such thing as an independent judicial figure, particularly when some people have such right-wing views that they want to hang you, or keep you locked up, rather than try to rehabilitate you. I am not sure whether it is worse to have an independent judicial figure or a politician.

181.

I am concerned about how the tariff works in England. If we take the case of Private Thain, he committed his crime in Northern Ireland, but went to England. He should have been sentenced under Northern Ireland law, which would have meant that the sentence would not have been reviewed for 10 years, according to the Life Sentences Review Board. However, his sentence was reviewed after 18 months. My understanding is that in England the sentence is reviewed after 18 months, then again after five years, eight years and 10 years. How can that happen if there is a tariff?

182.

Prof Jackson: In England, the Home Secretary has made such decisions and, over the years, successive Home Secretaries have been very jealous about their power in this regard. They believe that they should have the sole decision and, therefore, should keep discretion as to what they think the tariff period should be.

183.

In Northern Ireland, the Life Sentences Review Board has developed some guidelines as to when a case can first be looked at. However, in England, the Home Secretary has kept that decision very much to himself, up to now, on the grounds that his discretion should not be fettered by anybody and that he has to reflect public opinion. To some extent, that is what this argument is about; should decisions be taken by politicians to reflect public opinion, with the danger that there may be inconsistent treatment by the Home Secretary.

184.

The case you mentioned was obviously exceptional. To some extent there still are guidelines in England, but I think Ministers there have been very jealous about their discretion. Of course, insofar as mandatory life sentences are concerned - for murder, in which a life sentence must be imposed - the position has not changed in England yet. This Order would take us beyond England in this respect because it would be handing over such decisions to other people.

185.

Mr B Hutchinson: If somebody has been sentenced to life imprisonment why would you need to set a tariff? You do not have to release anybody? Do you think that deciding the tariff on the day somebody is sentenced is a punitive action, or would you prefer to see how somebody has been rehabilitated and then decide when he should be released? Do you understand what I am asking?

186.

Prof Jackson: Yes, I see your point. In practice, people are invariably released even after being sentenced to life imprisonment. So, even though we talk about a life sentence, that hardly ever happens, although there are obviously exceptions. We are then faced with devising procedures for the release of people sentenced to life, and perhaps one of the best ways is by dividing up the issues. The first issue is what length of time society requires the person to serve in prison to satisfy retribution, deterrence, and so on. That should be for the judge to decide at the trial.

187.

Following that period, we have to look at issues such as rehabilitation and risk. We have to consider individual cases and whether it is appropriate, with the tariff period having been served, for that person to be released. That seems to me to be a separate issue, but a very important one. It is so important that it is one that a judicial body should probably take - [Interruption]

188.

Mr B Hutchinson: There is a term in the Order, "risk to the public", which you referred to earlier. Do you think that term could be better defined?

189.

Prof Jackson: That is a very good point and it is one made by Prof Livingstone also. In England, when the Parole Board makes recommendations - and I stress that they are recommendations, except in the cases of those on discretionary life sentences - guidelines have been given to it as to what is meant by risk to an individual. These include the factors that should be taken into account, such as whether you should look at what that person has done in prison, their past, and so on.

190.

This Order does not really give any guidelines, nor does it allow for guidelines to be made. One would not necessarily expect a matter of detail like that to be in the Order but one would like to see provision being made in the Order for guidelines or directions to be established, perhaps with public consultation. The Life Review Sentence Commissioners could actually go about that themselves. But, however it is done, there is a strong argument for it.

191.

Mr Murphy: Article 11 of the Order ensures that the Secretary of State still has the final say, but it is not made clear as to what criteria governs him, such as secret reports and so on. Do you have an opinion on that?

192.

Prof Jackson: That is a good point because the Order is looking at what should happen from now on. This creates an important question about what should happen with existing life prisoners, and the Order suggests that should be a matter for the Secretary of State to refer to the Commissioners. One would not need to have that system. There are other ways of doing that, but the Order clearly says that it should be a matter for the Secretary of State.

193.

Mr R Hutchinson: Mr B Hutchinson's questions were about tariffs. If someone is given a tariff, of say 25 years, is there a mechanism by which they can serve less than that?

194.

Secondly, as we hear a lot about human rights, where do you see the victims' human rights coming into this whole scenario?

195.

Prof Jackson: As regards your first question, it would not be a possibility under the Life Sentences (Northern Ireland) Order 2001 for people to be released before the tariff has been served. The judge sets the tariff at the trial, and that period has to be served. The Life Sentence Review Commissioners will only look at the question of release once that period has been served.

196.

Mr B Hutchinson: Can you explain the difference between the tariff set by the judge and a recommended sentence that he gives? There is confusion here. Are they not two different things?

197.

Prof Jackson: Judges have tended to say "I recommend this," or, "I recommend that". Regarding mandatory life sentences for murder, the Secretary of State has had to consult with a judge - judges may not have said it in public - as to what the tariff period should be. That is going to be changed under the Life Sentences (Northern Ireland) Order 2001.

198.

Mr B Hutchinson: What I am trying to draw out is that that is different from the judge saying at a trial, "You have to do 25 years".

199.

Prof Jackson: It will be stronger now - if I may say so - for it will no longer be just a recommendation. The suggestion is that the judge will set the tariff and that will be the period to be served.

200.

Mr R Hutchinson: Are you saying that there will be no early release?

201.

Prof Jackson: That is right. As I understand it, the intention of the Life Sentences (Northern Ireland) Order 2001 is that there will be no release until the tariff period has been served, except on exceptional compassionate grounds.

202.

The Deputy Chairperson: What about the judge recommending a sentence? Will that be out?

203.

Prof Jackson: That is right. Recommendations are no longer going to be in. It is about setting the tariff and that is it: full stop.

204.

Mr R Hutchinson: What about the victims' human rights? Say someone commits rape and is sentenced to something like 3 months. Should there be input from victims, or would that be too emotional? Should they have any say?

205.

Prof Jackson: That is a very good question. It is very important for the sentencer, at trial, to ensure that he or she is aware of the impact on the victim. There are mechanisms in certain other countries that allow victims to give "impact statements" directly to the court.

206.

The Criminal Justice Review did not actually go so far as to recommend that that should be introduced in Northern Ireland. They suggested that it should still be for the prosecuting body to bring the experiences of the victim to the court, and not for the victim to come directly to court. However it is done, sentences have to have regard to it. That is why the tariff is so important -the tariff needs to represent that view in the sentence.

207.

Mr R Hutchinson: That is an excellent answer and I appreciate it, but maybe I phrased the question wrongly. The legislation provides for the Commissioners to discuss whether a person is suitable for release. I was thinking about that particular point, rather than at trial.

208.

A victim could be blinded and might want retribution. Should there be some mechanism somewhere for the representation of victims in that particular area - be it a female who has been raped or a child who has been abused? Is that not workable?

209.

Prof Jackson: That certainly would be possible, but then the whole test that the Commissioners would have to apply would be different. The Life Sentences (Northern Ireland) Order 2001 says that now, once that tariff period has been served - and that should represent the interests of the victim - the only ground that the Commissioners should be looking at is risk to the public. That question of risk to the public might involve the views of the victims, if they feel that they are still at risk. That would be relevant.

210.

Mr R Hutchinson: I fear that the Commissioners will replace the Secretary of State, which will not make a difference.

211.

The Deputy Chairperson: We will have to consider that point.

212.

Prof Jackson: We will have to see how that will work in practice.

213.

Mr Attwood: You said that the question of prisoner releases should not be considered by politicians. However, that was the primary point made by the Human Rights Commission in its critique of the proposed legislation. Politicians have an extensive role in the proposed procedures. For example, Article 5(4) confers discretion on the Secretary of State to

214.

Article 5(5) states that the Secretary of State specifies the part of the sentence that must be served before early release provisions apply. Article 9(2) states that the Secretary of State can call a released prisoner to prison without consulting the Life Sentence Review Commissioners. The list goes on.

215.

The Secretary of State has a strong involvement in determining what occurs operationally. The structures of an independent process are in place, but political involvement at critical points remains. That political involvement could mean that on the one hand, a prisoner could be recalled, or on the other, he could go forward to review. The system only determines what the Secretary of State allows it to determine. Is that a fair criticism of the proposal?

216.

I say that because the Secretary of State is retaining enormous powers, which can be seen in the Police (Northern Ireland) Bill, The Flags (Northern Ireland) Order 2000, and so forth. That is a cause for concern and reflects the culture in the British Government that they want value for their pound on one hand, and a role beyond their remit on the other.