The Committee was established following a resolution of the Northern Ireland Assembly on 22 January 2001:-

"That this Assembly appoints an Ad Hoc Committee to consider the draft Life Sentences (Northern Ireland) Order 2001 laid by the Secretary of State in accordance with section 85(4)(b) of the Northern Ireland Act 1998 and to submit a report to the Assembly by 12 March 2001.

Composition: UUP 2
SDLP 2
DUP 2
SF 2
Other Parties 3

Quorum: The quorum shall be five.

Procedure: The procedures of the Committee shall be such as the Committee shall determine."

The membership of the Committee is as follows:-

Introduction

Background

The Committee's Approach

Committee's Consideration of the Draft Order and Key Recommendations

Conclusions

Appendix 1 Minutes of Proceedings

Appendix 2 Minutes of Evidence

Appendix 3 List of Witnesses

Appendix 4 List of Written Submissions to the Committee

Appendix 5 Written Submissions to the Committee

1. The Secretary of State wrote to Lord Alderdice on 19 December 2000 referring the draft Life Sentences (Northern Ireland) Order 2001 to the Assembly for its consideration and comments. As a result of this letter and a subsequent letter from the Northern Ireland Office the Assembly established an Ad Hoc Committee, on 22 January 2001, to consider the draft Order and submit a report to the Assembly by 12 March 2001.

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2. The Ad Hoc Committee held its first meeting on 29 January 2001, Mr George Savage was elected as Chairperson and Mrs Eileen Bell as Deputy Chairperson. The Committee agreed that all meetings would be held in public, not to have deputies, and that decisions requiring division would be determined by simple majority. The Minutes of Proceedings are in Appendix 1.

3. At the first meeting the Committee considered the draft Life Sentences (Northern Ireland) Order 2001 and debated the purpose and changes to the legislation. The Committee agreed its overall approach, which is set out below.

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4. The Committee decided, as a result of extremely tight deadlines, it would invite written and oral evidence from:

• General Council of the Bar of Northern Ireland;
• Northern Ireland Human Rights Commission;
• Probation Board for Northern Ireland;
• The Law Society of Northern Ireland; and
• The Queen's University of Belfast-Institute of Criminology and Criminal Justice

5. It was also decided to invite written evidence from the :

• Lord Chief Justice's Office; and
• Northern Ireland Association for the Care and Resettlement of Offenders

6. The Committee received 6 written submissions.

7. Representatives of the Northern Ireland Human Rights Commission and Probation Board for Northern Ireland appeared before the Committee, on 5 February 2001, to make presentations and answer questions about the provisions of the draft Order, Minutes of Evidence are given in Appendix 2. Both organisations agreed to forward supplementary information. At this meeting the Committee agreed to invite the Secretary of State and senior Northern Ireland Office officials to give oral evidence on the background to the draft Order. However, due to pre-existing diary commitments the Secretary of State and Northern Ireland Office officials were unable to accept the Committee's invitation.

8. A representative of the Queen's University of Belfast, Institute of Criminology and Criminal Justice appeared before the Committee on 6 February 2001 to make a presentation, in a personal capacity, and answer questions about the provisions of the draft Order.

9. A list of witnesses is included in Appendix 3. A list of organisations who submitted written evidence to the Committee is included in Appendix 4 and the written submissions are included in Appendix 5.

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10. The Committee carried out an Article by Article consideration of the draft Order and Schedules on 12 February 2001. The Committee's key recommendations are included below each Article/Schedule.

11. Articles 1 and 2 deal with the title, commencement and interpretation of the draft proposed Order.

12. Article 3 requires the Secretary of State to appoint Life Sentence Review Commissioners (Article 3(1)). As far as is reasonably practicable, under Article 3(2) membership shall include:

• a barrister or solicitor who holds, has held, or is qualified to hold judicial office in the United Kingdom;
• a psychiatrist;
• a psychologist;
• a person with knowledge and experience of the supervision and aftercare of released prisoners; and
• a criminologist.

The Secretary of State can refer to any matter connected to the release or recall of life sentence prisoners to the Commissioners for their advice (Article 3(3)). In fulfilling their functions, the Commissioners must have regard to the protection of the public; the prevention of further offences; and the rehabilitation of life sentence prisoners (Article 3(4)). The proposed membership requirements reflect those functions. Article 3(3) allows the Commissioners to make recommendations - for example on licensing conditions - in addition to their powers to direct release under Article 6.

First, it recommended that Article 3(1) be amended to include a statement that the Commissioners are to be independent of Government. Second, although it may not require any changes to the wording of Article 3, the Committee recommended that appointments, as Life Sentence Review Commissioners, should as far as possible be made through open competition. Third, it recommended that Article 3(4) be amended as follows to include two additional factors ((b) and (c)) for the Commissioners to take into account:

(i) preventing the commission by life prisoners of further offences; and

In view of this recommendation, the Committee further recommended that the terms "the Convention rights" and "victim" be defined in an additional paragraph (7).

Schedule 1 sets out the arrangements for the appointment of Commissioners. It describes their tenure, remuneration and allowances, and disqualification under the House of Commons Disqualification Act 1975. It provides for the Secretary of State to appoint a Chairman from among the Commissioners as well as providing the Commissioners with staff, premises and facilities. The Chairman is required to prepare an annual report at the end of each financial year and lay it before both Houses of Parliament.

13. Article 4 introduces Schedule 2 (the establishment of Commissioners' Procedure).

Schedule 2 provides for the power of the Secretary of State to make Rules prescribing the procedure to be followed in relation to proceedings of the Commissioners. (These Rules are produced as a separate draft instrument.) The Rules include the powers of the Commissioners; arrangements for panels of Commissioners to hear cases; listing of cases; hearing procedure; rules on evidence; the withholding of information from the prisoner in certain circumstances; reports; timescales; and adjustments for recall cases. They also provide for the entitlement of the prisoner to a hearing of his case for release.

Schedule 2 also makes provision for the supply of evidence and information to the Commissioners. It provides the Secretary of State with the power to exclude the prisoner and his representatives from proceedings in certain circumstances and for the Attorney General to appoint a person to independently represent the prisoner's interests.

14. Article 5 requires the Court to set a tariff period that it considers appropriate taking into account the seriousness of the offence or offences. The tariff will be an order of Court and will mark the period of the sentence which is deemed to satisfy the requirements of retribution and deterrence (Article 5(2)).

When the seriousness of the offence or offences are such that a whole life tariff is appropriate the Court can order that the early release provisions shall not apply (Article 5(3)). Where such an offender is an adult, the Secretary of State has a discretionary power to refer the prisoner's case to the Commissioners for consideration at a stage he may judge to be appropriate (Article 5(4)). Where the offender was under 18 at the time of the offence (ie those sentenced to detention at the Secretary of State's pleasure) the Secretary of State shall direct, at an appropriate stage, that such cases become eligible for consideration for release by the Commissioners, under Article 6, once the tariff period which he specifies has been served (Article 5(5)).

Article 5(6) indicates that the appropriate stage, referred to in Article 5(4) and (5), will be when the Secretary of State, having regard to relevant factors in the case, considers that a direction on tariff may be made.

Article 5(7) defines associated offences in relation to the provisions at Article 5(3).

The Committee welcomed the new arrangements whereby courts will be required to fix the punishment part of a life sentence to satisfy the requirements of retribution and deterrence. The Committee debated Article 5(4) which allows the Secretary of State to direct that the early release provisions shall apply to an offender who was over the age of eighteen when he committed the offence and who has received a whole life tariff from the court. Although the Committee's majority view was to accept this provision, some Committee members objected to the provision in principle because it allows for political interference with the court's power to sentence convicted offenders who were over eighteen when they committed the offence. In relation to Article 5(5), it was felt that the power of the Secretary of State to review the court's sentence was appropriate where the offender was under the age of eighteen when the offence was committed.

15. Article 6 allows the prisoner to require his case to be referred to the Life Sentence Review Commissioners on expiry of his tariff for a direction as to his release (Article 6(5)). If the prisoner is serving two or more life sentences referral cannot be made until the tariff of each sentence has been served (Article 6(2)). If he is serving a determinate sentence with a life sentence, referral cannot be made until he could have been discharged on the ground of good conduct under prison rules on the determinate sentence (Article 6(5)(c)). A prisoner who has been referred to the Commissioners and has had his release refused will have his case re-referred by the Secretary of State within a maximum two year period (Article 6(5)(b)).

The Life Sentence Review Commissioners can direct a prisoner's release on licence if the case has been referred to them by the Secretary of State and if they are satisfied that continued detention of the prisoner is not required for the protection of the public (Article 6(4)). Subject to the requirements of other life sentences or determinate sentences, it is the duty of the Secretary of State to release the prisoner as soon as he has served his tariff and the Life Sentence Review Commissioners have directed his release (Article 6(3)). Any time during which a prisoner has been unlawfully at large will not count towards the completion of his tariff, unless otherwise directed by the Secretary of State (Article 6(6)). Where a life sentence prisoner is serving more than one sentence, whether a further life or determinate sentence, the Secretary of State will not be required to release that person until the period to be served in respect of each of the terms is satisfied (Article 6(7)).

16. Article 7 provides the Secretary of State with the power to grant compassionate release at any time in exceptional circumstances, for example, in the case of a terminally ill prisoner or in tragic family circumstances (Article 7(1)). The power could be used either before tariff expiry - and therefore before the Commissioners' powers can be exercised - or after. It could also be used when urgent decisions are required and a panel of Commissioners cannot be convened at short notice. Unless it is impracticable, the Secretary of State must consult the Commissioners (Article 7(2)).

17. Article 8 defines arrangements for the duration and conditions of licences. Unless revoked (under Article 9), such licences remain in force for life (Article 8(1)). Licences are granted and licensing conditions attached by the Secretary of State who has the discretion to require post-release supervision by a probation officer (Article 8(2)). The Secretary of State may make rules for regulating such supervision. The Secretary of State cannot attach, insert, vary or cancel licensing conditions except in accordance with the recommendations of the Commissioners (Article 8(3)). These conditions placed upon the Secretary of State apply to licences imposed on release and those imposed when recalled prisoners are being re-released and re-licensed.

18. Article 9 provides the arrangements for the recall of life sentence prisoners and SOSp's while on licence. Licences can be revoked and prisoners recalled to prison by the Secretary of State either with or without the recommendation of the Commissioners (Articles 9(1) and 9(2) respectively). The Secretary of State may revoke and recall without the Commissioners' recommendation where it appears expedient in the public interest to recall the prisoner and it would be impracticable to obtain views from Commissioners (Article 9(2)).

On recall to prison, the prisoner will be informed of the reasons for his recall and of his right to make representations which he may make in writing to the Secretary of State (Article 9(3)). All prisoners recalled under Articles 9(1) and (2) will be referred to the Commissioners by the Secretary of State (Article 9(4)).

The Commissioners have the power to direct release and the Secretary of State must give effect to their direction (Article 9(5)). A prisoner whose licence has been revoked is liable to be detained in prison and, if he is at large, shall be deemed to be unlawfully at large (Article 9(6)).

The Committee recommended that the wording of Article 9(2) be amended as follows to ensure consistency with Article 6(4)(b):

19. Article 10 provides for life prisoners transferred to Northern Ireland to be subject to the Order. Transferred life prisoners include those transferred to Northern Ireland from Great Britain under the Crime (Sentences) Act 1997 and those received from outside the United Kingdom either transferred under the Colonial Prisoners Removal Act 1884 or repatriated under the Repatriation of Prisoners Act 1984 (Article 10(4)). Those transferred under the Crime (Sentences) Act 1997 must be unrestricted transferees (Article 10(4)(b)(iii) as decisions on the release of restricted transferees remain the responsibility of the sending jurisdiction.

The Secretary of State will consult with the Lord Chief Justice of Northern Ireland, on transfer cases, and certify that they become eligible for consideration for release by the Commissioners once the tariff period which is specified has been served (Article 10(1)).

Article 10(2) makes provision for juvenile and adult whole life tariff transferees to be referred to the Commissioners in the same manner as those receiving whole life tariffs in Northern Ireland.

Transferred prisoners who have two or more life or SOSp sentences cannot be considered for release by the Commissioners until the tariff of the longer sentence has been served (Article 10(5)).

The Committee was concerned that the arrangements contained in Article 10 appear to be incompatible with Article 6 of the ECHR in that the Secretary of State, albeit in consultation with the Lord Chief Justice, certifies the part of the sentence to be served by life prisoners transferred to Northern Ireland. The Secretary of State is therefore given a sentencing function because he is given a power to specify the tariff or punishment part of the sentence in a certificate. The Committee agreed that Article 10 of the draft Order requires to be reconsidered in order to ensure compatibility with Article 6 of the ECHR.

20. Article 11 provides for the application of the proposed arrangements to existing life sentence and SOSp prisoners whose sentences were imposed prior to the commencement of the Order. These include:-

(a) those prisoners who have not been released on licence at any stage in their sentence; and

(b) those prisoners already recalled to prison on revocation of a life licence issued under Section 23 of the Prison Act (NI) or Article 46(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998.

For those existing prisoners identified at (a), the Secretary of State will consult with the Lord Chief Justice and the trial judge (if available) and shall certify that they become eligible for consideration for release by the Commissioners (under Article 6) once the tariff period which the Secretary of State specifies has been served (Article 11(1)).

For those existing prisoners identified at (b), their cases shall be referred to the Commissioners for consideration under the provisions of Article 9(3) to (5) (Article 11(5)).

21. Article 12 provides for the inclusion in the Commissioners' caseload of prisoners, already released under Section 23 of the Prison Act (Northern Ireland) 1953 and Article 46 of the Criminal Justice (Children) (Northern Ireland) Order 1998, whose life licences may be revoked after the commencement of the Order. (Article 12(1)). Any such prisoners subsequently recalled in this way shall have their cases referred to the Commissioners for consideration under Article 9(4).

22. Article 13 introduces Schedule 3 which provides for the amendments required to existing legislation and Schedule 4 which provides for repeals.

Schedule 3 provides for the amendment of the Repatriation of Prisoners Act 1984 and the Crime (Sentences) Act 1997 to include reference to the Life Sentences (Northern Ireland) Order 2001. The amendment of the Criminal Justice (Children) (Northern Ireland) Order 1998 removes the Secretary of State's power to discharge on licence those sentenced under that Order. The power of release is replaced with the provisions of the proposed draft Life Sentences (Northern Ireland) Order 2001.

Schedule 4 provides for the repeal of section 23 of the Prison Act (Northern Ireland) 1953, and of sections 1(2) and 1(3) of the Northern Ireland (Emergency Provisions) Act 1973 governing, respectively, the Secretary of State's current powers for the release of prisoners serving life imprisonment, and the requirement to consult with the Lord Chief Justice or trial judge if available prior to the release of such prisoners. The power of release is replaced with the provisions of the proposed draft Life Sentences (Northern Ireland) Order 2001.

As a consequence, Schedule 2, paragraph 10 of the Crime (Sentences) Act 1997, and Schedule 5, paragraph 6(b) of the Criminal Justice (Children) (Northern Ireland) Order 1998 are also repealed.

23. The Committee welcomed the draft Order but expressed concerns about the Secretary of State retaining certain powers, potential breaches of the ECHR, lack of clarification on life prisoner recall and revocation of licence. The Committee also stressed the need for the Secretary of State to enter into meaningful consultations with the relevant organisations before implementation.

In Attendance: Mr Tony Logue, Committee Clerk
Mr John Conlan
Mr Damien McVeigh
Mr Tim Moore
Miss Eileen Regan

Apologies: Mr Ian Paisley Jnr MLA

An apology was received from Mr Paisley.

The Clerk opened the meeting by introducing himself and the other Committee Office staff in attendance.

Following agreement by the Committee, the Clerk sought nominations for Chairperson. Mr Billy Hutchinson proposed that Mr Savage take the Chair; Mrs Bell seconded this. The question was put that Mr Savage do take the Chair. This was carried by a majority of members.

Nominations for Deputy Chairperson were sought. Mr Roger Hutchinson proposed Mrs Bell take the position of Deputy Chairperson; Mr Attwood seconded this. It was unanimously carried that Mrs Bell take the position of Deputy Chairperson.

The Chairperson reminded members that they were required to declare any specific or other interests related to the work of this Committee. Mrs Bell declared an interest as a member of the Probation Board for Northern Ireland and stated she is no longer a member of the Local Government Staff Commission (NI). Mr Billy Hutchinson declared an interest as a life sentence prisoner on licence.

The Terms of Reference of the Committee were noted.

The members agreed to hold future meetings in public session and that voting would be by simple majority as in Standing Order 47(9). It was agreed not to have deputies.

The Committee debated the purpose and changes to legislation following a brief presentation from the Assembly Research and Library Service. The Committee requested a research brief distinguishing the difference between the Sentence Review Commissioners and the Life Sentence Review Commissioners be issued to members.

The Committee considered key witnesses who could be invited to attend meetings and provide written and oral evidence. As a result of the extremely tight deadlines involved for reporting to the Assembly, the Committee agreed to invite written and oral evidence from:

General Council of the Bar of Northern Ireland;

Northern Ireland Human Rights Commission;

Probation Board for Northern Ireland;

The Law Society of Northern Ireland; and

The Queen's University of Belfast Institute of Criminology and Criminal Justice.

The Committee agreed to invite written evidence from:

Lord Chief Justice's Office; and

Northern Ireland Association for the Care and Resettlement of Offenders.

A copy of section 71 of the Courts and Legal Services Act 1990 will be issued to members.

Following a short discussion on the format of the Committee Report it was agreed that where consensus is not reached the Report will reflect the various propositions from members.

The members agreed that the next two meetings of the Committee would be held on Monday, 5 February 2001 at 10.15am in Room 152, Parliament Buildings, and Tuesday, 6 February 2001 at 2.00pm in Room 152, Parliament Buildings.

Mr George Savage MLA
Chairperson, Ad Hoc Committee - Life Sentences (NI) Order 2001
5 February 2001

In Attendance: Mr Tony Logue, Committee Clerk
Mr John Conlan
Mr Damien McVeigh

None.

The Chairperson informed members that due to European engagements he would be unable to attend the next meeting.

The minutes were agreed and signed by the Chairperson.

A research paper distinguishing the differences between the Sentence Review Commission and the Life Sentence Review Commission and a copy of section 71 of the Courts and Legal Services Act 1990 were noted.

It was agreed that the Committee would write to the Secretary of State and senior officials from the Northern Ireland Office inviting them to give oral evidence on the draft Order.

The Chairperson informed members that The Law Society of Northern Ireland would not be accepting the Committee's invitation to provide oral or written evidence. The General Council of the Bar of Northern Ireland will endeavour to provide a written submission.

Evidence on the Life Sentences (NI) Order 2001 was taken from Professor Brice Dickson and Ms Maggs O'Conor from the Northern Ireland Human Rights Commission. It was agreed that they would forward additional information.

Evidence on the Life Sentences (NI) Order 2001 was taken from Mr Brendan Fulton and Mr Alan Darnbrook from the Probation Board for Northern Ireland. It was agreed that they would also forward additional information.

None.

The members agreed that the next two meetings of the Committee would be held on Tuesday, 6 February 2001 at 2.00pm in Room 152, Parliament Buildings and Monday, 12 February 2001 at 10.15am in Room 152, Parliament Buildings.

Mrs Eileen Bell MLA
Deputy Chairperson, Ad Hoc Committee - Life Sentences (NI) Order 2001
6 February 2001

In Attendance: Mr Tony Logue, Committee Clerk
Mr John Conlan
Mr Damien McVeigh

Apologies: Mr George Savage MLA, Chairperson
Mr Alban Maginness MLA

The apologies are listed above.

The minutes were agreed and signed by the Deputy Chairperson.

None.

Evidence on the Life Sentences (NI) Order 2001 was taken from Professor John Jackson from the Queen's University of Belfast. It was agreed that he would provide additional information.

A draft report will be prepared and distributed to members on Friday, 9 February 2001.

The Clerk informed members that he had invited the Secretary of State for Northern Ireland, on the Committee's behalf, to attend a future meeting of the Ad Hoc Committee; a reply was expected by Thursday, 8 February 2001.

The members agreed that the next meeting of the Committee would be held on Monday, 12 February 2001 at 10.15am in Room 152, Parliament Buildings.

Mr George Savage MLA
Chairperson, Ad Hoc Committee - Life Sentences (NI) Order 2001
12 February 2001

In Attendance: Mr Tony Logue, Committee Clerk
Mr John Conlan
Mr Damien McVeigh
Ms Imelda McAuley

Mr R Hutchinson proposed that the meeting suspend for one hour to allow members an opportunity to review the draft report, agreed.

No apologies were received.

The minutes were agreed and signed by the Chairperson.

The Chairperson informed members that the Lord Chief Justice's Office would not be making a written submission but the General Council of the Bar of Northern Ireland hoped to make a written submission by Wednesday, 15 February 2001.

The Committee noted the submission received from the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO).

The Chairperson reminded members that, due to the tight deadline, the Committee Staff required corrected transcripts to be returned no later than close of play on Tuesday, 13 February 2001.

The Committee noted the draft report and agreed to carry out an Article by Article consideration of the draft Order.

Article 1 - Title and commencement

Agreed, that the Committee had no objections to this Article.

Article 2 - Interpretation

Agreed, that the Committee had no objections to this Article.

Article 3 - Life Sentence Review Commissioners

Agreed, that there should be a clear statement outlining that the Commissioners should be independent of Government and appointed through open competition; in exercising their functions, have regard for the Convention rights of the life prisoners and also any representations made on behalf of the victim.

Schedule 1 - Commissioners

Agreed, that Schedule 1 should provide for a fixed term of appointment, to ensure independence from Government.

Article 4 - Commissioners' Procedure

Agreed, that the Committee had no objections to this Article.

Schedule 2 - Commissioners' Procedure

Agreed, that the provisions for disclosure of information to the life sentence prisoner may give rise to challenge under Article 6 of the European Convention on Human Rights (ECHR) and therefore, there should be a role for the Commissioners in deciding what information can be classified confidential.

Article 5 - Determination of tariffs

Agreed, that the Committee welcomes the new arrangements whereby courts will be required to fix the tariff upon sentencing.

The Committee debated the provisions of Article 5(4) and Mr Paisley stated that he could not agree that a politician should have the powers provided for under this Article, and that these would be better exercised by the courts.

Article 6 - Duty to release certain life prisoners

Agreed, that Article 6(4) be amended to remove the potential for conflict between the proviso contained in Article 6(4)(b), i.e. that life prisoners are not to be released unless the Commissioners are satisfied that there is no risk of serious harm, and the current Article 3(4)(b), which requires the Commissioners to have regard to the desirability of preventing the commission of further offences and securing the rehabilitation of life prisoners.

Article 7 - Power to release life prisoners on compassionate grounds

Agreed, that the Committee had no objections to this Article.

Article 8 - Duration and conditions of licences

Agreed, that the duration of the licence was unduly harsh and that this Article should be amended so that the Life Sentence Review Commissioners could review the conditions periodically and annul the licence if appropriate.

Article 9 - Recall of life prisoners while on licence

Agreed, that greater clarity is required on the arrangements for the recall of the life sentence prisoners while on licence.

Article 10 - Life prisoners transferred to Northern Ireland

Agreed, that the provisions of this Article appear to be incompatible with the ECHR and should be amended so that the power of the Secretary of State, in relation to specification of the tariff of the life prisoner's sentence, be given to the Court.

Article 11 - Existing life prisoners

Agreed, that the provisions of this Article appear to be incompatible with the ECHR and should be amended so that the power of the Secretary of State, in relation to specification of the tariff of the life prisoner's sentence, be given to the Court.

Article 12 - Existing licences

Agreed, that the Committee had no objections to this Article.

Article 13 - Amendments and repeals

Agreed, that the Committee had no objections to this Article.

The Committee agreed to consider a revised draft report at its next meeting. Action: Clerk.

The Committee agreed the draft Motion.

The members agreed that the next meeting of the Committee would be held on Monday, 19 February 2001 at 9.30am in Room 144, Parliament Buildings.

Mr George Savage MLA
Chairperson, Ad Hoc Committee - Life Sentences (NI) Order 2001
19 February 2001

In Attendance: Mr Tony Logue, Committee Clerk
Mr John Conlan
Mr Damien McVeigh

None

The minutes were agreed and signed by the Chairperson.

Members noted a letter from the Northern Ireland Office (NIO) explaining that, due to pre-existing diary commitments, the Secretary of State and NIO officials were unable to accept the Committee's invitation to give oral evidence on the draft Order. The Committee agreed to write to the Secretary of State expressing disappointment that they were unable to attend. The Committee also agreed to write to the Speaker's Office and the relevant Committee about the very tight deadlines that were set for this and other Ad Hoc Committees to complete their work. Finally, the Committee agreed to write to the General Council of the Bar of Northern Ireland expressing disappointment that they were unable to provide a written submission before today's meeting.

Action: Clerk

The Committee agreed that responses, to questions raised by members, from the Probation Board for Northern Ireland be included as a supplementary written submission in Appendix 5 of the Report. The Committee noted a copy of the publication "Prison Law" by Stephen Livingstone and Tim Owen will be placed in the Assembly Library.

Action: Clerk

Mrs Bell proposed the Committee should agree the Report subject to minor amendments. This was seconded by Mr Maginness. The Committee ordered the Report to be printed.

Members agreed that the Minutes of Proceedings will be agreed and signed by the Chairperson.

The Chairperson thanked members and staff for their assistance in enabling the Report to be completed on time.

George Savage MLA
Chairperson, Ad Hoc Committee - Life Sentences (NI) Order 2001
19 February 2001

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APPENDIX 2

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

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

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This is very much a first draft document and should be considered as such. It is not the final document that the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) will be producing. However, given the time constraints concerning the request by the Ad Hoc Committee I am submitting this document on the understanding that those reading it are aware that this is not NIACRO's final position on the matter. The material does give an indication of the organisation's general response.

Since the abolition of capital punishment, the life sentence is the harshest punishment that the law allows. It is mandatory in the case of a conviction for murder and can be imposed for a wide range of other serious crimes. The idea behind the sentence is that some crimes are so heinous - and might once have been punishable by death - that they deserve permanent exclusion from society, incarceration for the rest of natural life.

In practice, the life sentence has never meant actual imprisonment until death. The length of time served can vary between a couple of years and over twenty, with a very few cases where there is no likely prospect of release. Faith is kept with the concept of whole life imprisonment in that release of a lifer is on licence with the Executive having the right of recall. Nonetheless, the reality is that the life sentence (and detention at the Secretary of State's pleasure for juveniles) are indeterminate prison sentences. One of the main questions, then, is how decisions are made on when to release lifers from custody.

Historically, in the UK, decision on release has always been made by the executive - in theory a power of the Crown, in practice exercised by Ministers. The Crown is held to be the "fountainhead of justice" and therefore has the right to release people from sentences of the court. Constitutionally this power is expressed in the Royal Prerogative of Mercy. Similarly, the view has been that, once the courts have given someone a life sentence it is only the Crown, as the sovereign of the courts of justice as well as of the Executive, which can exercise the power of release. Unfortunately, the power of release also implies the power to keep incarcerated. The refusal to release in any given case therefore is the same in practice as sentencing a person to a further period of imprisonment.

The view has been taken, and a number of court rulings have confirmed, that the exercise by the Executive of this power is contrary to human rights and offends against the principle that no-one shall be deprived of liberty except by proper judicial process. As the Explanatory Document to the draft Order makes clear, the government is concerned that present arrangements may be contrary to the Human Rights Act 1998 which incorporates the European Convention on Human Rights into domestic law.

From 1972 to 1981, the Secretary of State took decisions on lifer release without much public or formal procedure surrounding the process, apart from consulting the judiciary. In the early eighties, however, the first persons sentenced to life arising out of the current phase of troubles were coming to the time when they might reasonably be considered for release. A "Life Sentences Review Board" was set up, which combined civil servants and various experts, to advise the Secretary of State. In 1984 an Explanatory Memorandum made the system public and described some of its principles of operation.

There was much opposition to this process as it purported to use psychological and social information to assess the risk posed by individuals even though the vast majority of lifers, at this time, were politically motivated. It also implied that those who broke their paramilitary links could be assessed better and therefore were more likely to be released earlier. The system also introduced the "working out scheme" which involved a gradual release from prison over a period of months while the prisoner worked during the day in the community.

All lifers were considered by the Board after serving ten years, although internal civil service reviews took place earlier, and all SOSp's after eight years. The Board first had to consider what the "tariff" would be, to reflect the seriousness of the offence, and then whether the prisoner was a continuing threat to the public. If a recommendation was made to release, the original trial judge, if available, or the current Lord Chief Justice would be consulted as to their views. The Secretary of State would then make a decision on the release date.

In spite of its political problems, the system rubbed along reasonably effectively. 456 lifers have so far been released under that scheme and very few have reoffended. The Life Sentence Review Board is, however, only advisory and a politician ends up taking the decision on release. Apart from being contrary to human rights, that fact always gave rise to the perception that political factors, rather than the circumstances of the individual case, might influence decisions. The current Order is designed to replace this system.

Some of the issues involved in constructing a mechanism for the release of life sentence prisoners are as follows:

• Who sets the "tariff" - the length of time to be served sufficient to satisfy the demands of retribution and deterrence?
• Who takes the decision on whether the prisoner poses a continuing threat - human rights standards demand independence and impartiality?
• What evidence is taken into account, how are hearings, if any, managed, how is the prisoner's case represented and, in general, to what extent do the decision-making procedures accord with principles of due process?
• How are conditions set on release and of what nature are they.
• What are the conditions and procedures for recall for breach of licence - again human rights standards demand a judicial process for the deprivation of liberty?

These are some of the matters that must be considered when examining the draft Order.

As a consequence of the introduction of the Human Rights Act 1998, the government undertook a review of prison-related legislation to check that it was compliant with this new law. It felt that section 23 of the Prison Act (Northern Ireland) 1953 was not in line with human rights standards. At the same time the Review into the Criminal Justice System, set up under the Belfast Agreement, examined the life sentence review procedure.

During the course of this Review, the Sentence Review Commission, established by the Agreement to release politically motivated prisoners, was carrying out its work effectively. The independence of the Commissioners, the system of hearings and the relative transparency of their criteria, made for giving the process a high degree of legitimacy.

In its evidence to the Criminal Justice Review, NIACRO proposed that:

The Review agreed and the government has now decided to build on the experience, and actually the structure and administration, of that Commission as the basis of the new procedure for releasing lifers. It proposes the appointment of Life Sentence Review Commissioners to consider and direct the release of all life sentence and SOSp prisoners.

This is the core of the draft Order in that it establishes an independent commission made up of a range of experts. The Commissioners will be appointed on a clear contract and can only be dismissed for cause and after consultation with the Lord Chief Justice. Commissioners will be paid and they will have their own staff and premises. It is also important that the Chair of the Commissioners is obligated to produce an Annual Report. NIACRO fully supports this procedure and the mix of expertise suggested. It ought to be made clear, however, that the expertise of the Commissioners is only required so that they will appreciate the significance of various aspects of the evidence presented to them. Their role is quasi-judicial and decision-making must be based on evidence not on impressions.

Schedule 2 provides for the Secretary of State to issue a Statutory Instrument as Rules for the Commissioners and a draft is presented. The Schedule provides that the Rules can cater for the allocation of cases to panels of Commissioners, lay down regulation about types of evidence and witnesses and exclude the prisoner and his representative from hearings in particular circumstances.

The first substantive Rule (3) provides for the appointment of three-person panels to hear cases which must include a legally qualified Commissioner and, ideally, either a psychiatrist or psychologist. This seems perfectly reasonable.

Rule 5 deals with the issue of representation of the prisoner. In principle, a prisoner may appoint anyone, including a lawyer, to represent him. The Rule says, however, that the Commissioners must consent to that person being a serving prisoner, an ex-lifer or anyone with an unspent conviction. We can see no reason for this discrimination, particularly as security concerns are dealt with elsewhere.

Again, the prisoner is, quite properly, given the right to be accompanied by someone other than his representative, but that is qualified by saying that the prison governor (most hearings will be held in the relevant prison) must agree. Again, no good reason is adduced for this restriction.

We support the ability of the Commissioners to appoint a suitable person to represent a hitherto un-represented prisoner with his consent. Perhaps a panel of such suitable persons could be established.

Rules 7 to 13 deal with the conduct of hearings. Much of this is unexceptionable and appears to meet the standards of due process. There are some elements of concern, however. Paragraphs 7 and 8 of Rule 10 allow the exclusion of the prisoner and his representative when withheld or confidential information is being considered. These two categories are created in Rule 14(2) and Rule 15. "Withheld information" is material which the Secretary of State believes would "adversely affect the health or welfare of the prisoner or others" if it were disclosed. At first sight, this is a paternalistic and unnecessary restriction and is, clearly, an offence against due process. At the very least, government ought to make clear -on the record, in Hansard, so that it could be used as indicative in any judicial review - what its understanding of the practical intention of this section is.

"Confidential information" is material which, again in the opinion of the Secretary of State (meaning, in practice, his security advisers) would lead to commission of an offence, prejudice security or harm the public interest. It is assumed that this power is designed particularly for any further "terrorist" cases. It is, typically, too wide and general. The temptation will be to use such powers in any difficult case. Rule 16 does allow for the appointment by the Attorney General of a "special advocate" to represent the prisoner's interests in relation to dealing with such information. Strangely, however, this special advocate is barred from any communication with the prisoner or his representative except with the permission of the panel. He or she would therefore be unable to get a rounded view of the context of the case.

The other rules make detailed arrangements about the conduct of cases and raise no particular issues of substance.

This Article places the burden of setting "the tariff" on the trial court based on satisfying "the requirements of retribution and deterrence". Obviously this is a subjective test but will be appealable and subject to case law. Given the continuing existence of the indeterminate character of life sentences this is probably the right manner for the decision on the tariff to be made.

This Article also makes specific provision for the imposition of a "whole life" tariff, meaning that the court will direct that the case should never be referred to the Commissioners for consideration for release. It may well be considered that it is inappropriate for a trial court ever to take the decision that a person should spend the rest of their natural life in gaol irrespective of how conditions or circumstances may change in subsequent years.

However, there is provision for this "whole life" tariff to be overriden. If the person sentenced was under 18 when he committed the offence the Secretary of State must, at some unspecified point, refer the case to the Commissioners. In other words, the Minister has to take up the burden of deciding on the actual tariff in these cases. It is impossible to see any justification, other than the immediate satisfaction of public opinion, for a whole life sentence to be passed by the court in the first place on a person under 18.

Moreover, the Secretary of State may decide, in the case of an adult given a whole life tariff, to refer the case to the Commissioners anyway, when he or she considers they have served long enough. Again this raises the desirability of a court passing a sentence which a politician can overturn. It might be considered that, if such a power is to exist, as in all humanity it probably should, why it should be given to a politician rather than to the independent Commissioners. It would be better for all cases to be referred to the Commissioners either at the end of a fixed tariff or after a set period of time for their second opinion first, on the tariff itself and, second, on the desirability of release. It is hard to see how this retained power for the Secretary of State complies with the standards of human rights and due process elsewhere upheld.

This is the Article that gives the substantive power to direct the release of a lifer to the Commissioners and obliges the Secretary of State to release such a person on licence. The test that the Commissioners must apply is that they must be satisfied "that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined." This is a curious formulation. First, it assumes that it was at some point necessary to confine the prisoner for the protection of the public. Yet this whole system of release is based on the long held view that the issues of retribution and deterrence and that of the potential dangerousness of a prisoner are two separate and distinct matters. It is quite possible and usual for a murder to be the result of one-off and unique circumstances - the murderer must be imprisoned to mark society's abhorrence of the act, but he or she is of no further danger to the public. This system recognises that by ensuring that cases are referred to the Commissioners immediately the tariff period is up, It would be more logical, then, to replace the words "no longer" with "not".

The second curious and seriously problematic aspect is that the Commissioners are required to be satisfied of a negative - that the prisoner is not harmful. There is no reference to the standard of proof required ("beyond reasonable doubt" or "on the balance of probabilities" being the two usual standards) but it is widely held to be difficult if not impossible to prove a negative. The formulation in the draft Order sounds safe - the implication is that the Commissioners are satisfied that there is no risk to the public. In fact, it is impossible to be satisfied that there is no risk and so, to that extent, the formulation is meaningless.

It would be far better, and much easier in judicial terms, for the test to be put in positive terms. For example, that there be no release:

This would mean that positive evidence of risk would have to be produced which then the prisoner could challenge. It might be necessary to do more work around the formulation, "substantive evidence", but the point is that a positive can be demonstrated, to whatever level of proof required, whereas a negative cannot.

This factor is particularly important in cases where the prisoner insists on maintaining his or her innocence. Where this is the case, they clearly will not participate in programmes designed to address offending behaviour nor will they express remorse for what they have done. Given that the authorities who decide on release have to assume that the verdict of the court was correct and that the prisoner is in fact guilty, the logical assumption is that their refusal to recognise that, to express remorse and to try and change their character is evidence of future dangerousness. The result can be refusal to release the prisoner.

This is especially distressing in cases of miscarriage of justice. The recent case of Stephen Downing, now released on bail pending an appeal against his conviction, is demonstrative. He has served 27 years in prison for murder, twice or three times the norm, and is now released because the Crown has accepted that his appeal is "highly likely" to succeed.

If the test for release were made positive, only substantive evidence of dangerousness would count. Simple non-attendance at behaviour modification courses or refusal to express remorse would not count unless there were other evidence that the prisoner was dangerous.

The Article provides for the Commissioners to re-assess a case where they have refused release, every two years. This is a sensible and humane period of time.

The power of the Secretary of State to release a prisoner on compassionate grounds is retained, though he or she must consult the Commissioners if practicable. There seems no clear reason why this power is given to the Secretary of State rather than, say, to the Chair of the Commissioners.

Article 8 provides that licences shall last until death. In respect of conditions that may be attached to a licence, the Secretary of State is given the duty of making rules about them - a draft has not been provided so far. However, it is up to the Commissioners to recommend conditions and this is binding on the Secretary of State. It appears from paragraph (3) that any cancellation or variation of conditions will have to be referred back to the Commissioners. We think that is probably right, so long as the Commissioners are able to be flexible and take quick decisions.

There are a number of important issues with regard to life licence conditions that can only be discussed in detail in the context of a draft of the relevant Rules. A few points may be made. Conditions must be proportionate and not just piled on in an illusory pursuit of nil risk. The role of supervision by the Probation Service must be carefully discussed and only invoked where the relevant professional skills are needed. In so far as conditions are related to reintegration into society, they should be facilitative rather than restrictive.

The most important point here is, however, that the draft Order does not directly relate any breach of conditions to the revocation of licence. One may assume that such breach might be part of the evidence adduced, but the link is not made explicit. Again, the Rules on conditions should make it clear which might lead to revocation of the licence if breached.

The Commissioners may recommend that a prisoner's licence be revoked and he or she be recalled to prison. The Secretary of State must carry that out and may also exercise the right him or herself if s/he feels it is "expedient" to do so before a recommendation from the Commissioners is practicable. The Commissioners must hear the case of such a prisoner basically as if it were a new case referred to them. So, even though they will have already recommended revocation of the licence and recall, they must then sit down and hear the case in a quasi-judicial capacity. This is a somewhat odd situation but is perhaps sensible in practice.

It is, however, completely unacceptable that the draft Order contains no formulation of the grounds on which a licence might be revoked. The assumption must be that evidence has been produced which gives rise to a grounded apprehension of serious risk to the public. That should, however, be made clear.

Apart from a few instances, revocation of life licences has only generally occurred in Northern Ireland where a person has committed further, relatively serious offences. The Order, or the Rules, should make clear the grounds on which revocation can be recommended and confirmed and the level of seriousness of further offences that might be considered. As this section stands it is offensive to the principle of liberty of the subject.

Article 10 extends the release system to transferred lifers (sentenced in other jurisdictions and transferred to serve their sentences in Northern Ireland) with the exception of "restricted transferees" whose release remains the responsibility of the sending jurisdiction. Articles 11 and 12 extend the system to existing lifers and licensees and Article 13 deals with consequent amendments. None of these Articles raises any substantive issue.

The Order marks a major step forward. In responding to the necessity to put a system of due process around the decision on the length of indeterminate sentences, the Government has proposed building on a specific Northern Ireland experience. Whatever one thinks about the process of prisoner release, the Sentence Review Commissioners have carried it through in a professional, objective and, above all, independent manner. A system based on their operations, and, in the transition period even using some of the existing Commissioners, for life sentence review makes all kinds of sense.

The scheme is marred by the Secretary of State unnecessarily retaining some powers, some serious deficiencies in process and by the nature of the test for release. It is also unacceptable that the Order does not spell out in more detail the grounds for recall and revocation of licence.

There is therefore some need for amendment and detailed discussion of this Order, though its main direction is positive in that it provides an independent tribunal to take decisions which have hitherto been taken by a politician.

1. The Northern Ireland Human Rights Commission welcomes the proposed draft Life Sentences (NI) Order because it attempts to bring the law on the release of life sentenced prisoners in Northern Ireland into line with the requirements of the European Convention on Human Rights, which is part of the law of Northern Ireland by virtue of the Human Rights Act 1998. The Commission offers the following advice to the Northern Ireland Assembly's Ad Hoc Committee on further adjustments which could be made to the Order in order to copper-fasten its compliance with the European Convention. These comments are intended to be provisional only: they do not necessarily represent the Commission's final views. These will be transmitted to the Northern Ireland Office prior to the deadline of 15 March 2001.

2. Article 3(4) of the Order specifies the matters which the Life Sentence Review Commissioners must have regard to when discharging their functions under the Order. We recommend that a paragraph (c) should be added requiring the Commissioners to have regard to "the Convention rights of life prisoners".

3. Article 5(4) confers a discretion on the Secretary of State to direct at an appropriate stage that the early release provisions shall apply to an offender in respect of whom the court has decided under Article 5(3) not to apply the provisions. We recommend that this discretion be replaced with a duty, as in the case under Article 5(5) in respect of offenders who were aged under 18 when they committed the offence in question. To distinguish between offenders on the basis of their age in this regard is unjustifiable in law and would be difficult to justify under section 75 of the Northern Ireland Act 1998 (which requires designated public authorities - including the Northern Ireland Office - to promote equality of opportunity regardless of age).

4. Articles 5(4) and 5(5) suggest that it is the Secretary of State who would specify the part of the sentence which must be served before the early release provisions would apply to the prisoners in question. The Human Rights Commission finds it objectionable that a Government Minister should have the power to specify this period, especially as the Order gives no guidance on how the length of the period should be determined (there is no equivalent in this context to Article 5(2), which provides guidance to courts when specifying such a period). We recommend that such guidance be included in a new paragraph to be inserted immediately after the current Article 5(5).

5. Article 5(6) defines the phrase "appropriate stage" for the purposes of Articles 5 (4) and 5(5). The Commission finds this definition much too subjective. It is possible that the European Court of Human Rights would not accept (a) that a Government Minister should be empowered to take such decisions relating to the punishment of an offender and (b) that the decision can be so subjectively based. At the very least the word "reasonably" should be inserted before the word "determined" in line 3 of Article 5(6).

6. Article 6(4) requires the Life Sentence Review Commissioners, before directing a life prisoner's release, to be "satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined". Again the Human Rights Commission finds this provision too vague. It does not specify to which degree the Commissioners must be "satisfied" - beyond a reasonable doubt, on the balance of probabilities or in accordance with some other standard? Is it sensible to apply the same standard no matter how much time has elapsed since the release of the prisoner? Nor does the Order define what is meant in Article 6(4) by "serious harm"; and must it be the case that it is serious harm "to the public" which is in question - what if a particular person would be at risk of serious harm from the offender (e.g. a person who testified against the offender at his or her trial)? Surely that would often be enough to justify not releasing the prisoner?

7. Article 6(4) does not require the Life Sentence Review Commissioners to have any regard whatsoever to the views of the victims of the prisoner, or to the views of the family of the victim if he or she is dead. The Human Rights Commission by no means wants to suggest that the views of such persons should be determinative of whether the life prisoner is given early release or not, but international human rights standards are increasingly saying that victims must be allowed to express their views to courts - and at the very least to be informed about decisions such as the early release of offenders.

8. Article 8(1) of the Order says that when a prisoner is released on licence the licence shall remain in force until the prisoner's death. This is a particularly harsh provision, one which is not mirrored in many other countries. It means that it is impossible for a life prisoner to wipe the slate completely clean even though he or she may have served a lengthy prison sentence and be a completely reformed character. There is an argument for saying that the force of a licence should at least diminish as a released prisoner's life progresses, so that recall to prison becomes more difficult to justify as the released prisoner gets older. It may be sensible to provide that once a specified number of years have elapsed since the person's release the licence automatically lapses.

9. Article 8(2) provides that a released life prisoner's licence can be subjected to conditions but it does not specify what kind of conditions can be imposed. Some conditions would clearly be unreasonable - e.g. that the released prisoner must always live in a certain area or that he or she should never be granted a passport. The Order should specify that conditions cannot be imposed which breach a released prisoner's Convention rights (allowing for the fact that the European Court may well accept that some of these rights can to some extent be qualified in the case of released life prisoners).

10. Article 9 (1) of the Order allows the Life Sentence Review Commissioners to recommend the recall of a released life prisoner. But it does not specify what standard of proof the Commissioners should adopt before making such a recommendation or what factors the Commissioners should take into account before doing so. This is a serious flaw in the legislation. It is not clear, for example, whether the breach of any condition imposed on a released life prisoner, however trivial the breach, would automatically justify a recommended recall by the Commissioners.

11. Article 9(2) allows the Secretary of State to recall a released life prisoner to prison without first consulting the Life Sentence Review Commissioners. The Human Rights Commission fails to understand why it is necessary to confer such a power at all on a Government Minister: should not all recalls have to be preceded by a recommendation from the Life Sentence Review Commissioners? It is difficult to imagine a case arising in such urgent circumstances that a view from the Commissioners cannot first be sought.

12. The test for recall by the Secretary of State under Article 9(2) is "where it appears to him that it is expedient in the public interest to recall that person". This is a very vague test indeed. If this power of recall is to be retained at all, the word "expedient" should be replaced by "necessary" and the phrase "in the public interest" should be replaced by "to protect the public from serious harm".

13. Article 9(4) says that the Secretary of State shall refer the case of a recalled life prisoner to the Life Sentence Review Commissioners but it does not say when this must be done. The Human Rights Commission recommends that the phrase "as soon as possible" be inserted after the word "shall" in line 1 of Article 9(4).

14. Articles 10(1) and 10(2) suggest that it is the Secretary of State who would specify the part of the sentence which must be served before the early release provisions would apply to the prisoners in question. As stated in para. 4 above, the Human Rights Commission finds it objectionable that a Government Minister should have the power to specify this period, especially as the Order gives no guidance on how the length of this period should be determined (there is no equivalent in this context to Article 5(2), which provides guidance to courts when specifying such a period). We recommend that such guidance be included in a new paragraph to be inserted immediately after the current Article 10(2).

15. Article 10(4)(a) partly defines a transferred life prisoner as "a person on whom a court in a country or territory outside Northern Ireland has imposed one or more sentences of imprisonment or detention for an indeterminate period". It is unclear to the Human Rights Commission whether this is intended to embrace persons on whom a life sentence has been imposed. If it is, the wording could be more precise. If it is not, why not?

16. Articles 11(1) and 11(2) again suggest that it is the Secretary of State who would specify the part of the sentence which must be served before the early release provisions would apply to the prisoners in question. For the reasons given at paras. 4 and 14 above, the Human Rights Commission has doubts about this method of proceeding.

17. The proposed Life Sentence Commissioners' Rules 2001 refer throughout to the Chairman of the Panel but they appear to make no provision for the appointment of such a person (in particular Rule 3 does not seem to do so). The Human Rights Commission does not believe that the Chair of the Panel should have the powers specified in the Rules: they should all be exercised by the Panel acting collectively (or by majority if necessary).

18. Rule 9 of the proposed Life Sentence Commissioners' Rules 2001 deals with the location and privacy of hearings. The Human Rights Commission recommends that a new paragraph be inserted saying that the Human Rights Commission will be permitted to observe any hearing if the prisoner requests this. This would help the Commission to fulfil its statutory role as the promoter and protector of the human rights of everyone in Northern Ireland.

19. Rule 9(2) provides that the hearings shall be held in private unless the Chairman of the Panel otherwise directs. The Human Rights Commission recommends that this should be reworded to read that the hearings shall be held in public unless the Panel otherwise directs in accordance with Article 6 of the European Convention on Human Rights.

20. Rule 11(4)(2) [there may a misprint in the numbering system here] does not impose any time limits on the Chair of the Panel in relation to either (a) or (b). The Human Rights Commission believes such limits should be imposed in order to add certainty and celerity to the whole process (as required by Article 6 of the European Convention).

21. The Commission has the gravest of doubts about the compatibility of Rules 15 and 16 of the proposed Life Sentence Commissioners' Rules 2001, which deal with the non-disclosure of confidential information and the appointment of "special advocates" to represent the interests of the prisoner. We believe that the special advocate procedure may well be in breach of Article 6 of the European Convention on Human rights (the fair hearing provision) because Rule 16(3) prohibits a special advocate from communicating directly or indirectly with the very prisoner he or she has been appointed to represent! [There appears to be a misprint in para. 16(3): it should cross-refer to para. 16(4), not 16(5).]

PROFESSOR BRICE DICKSON
CHIEF COMMISSIONER
5 February 2001

Unfortunately it was not possible for the Human Rights Commission to provide in time the two further pieces of information which I said at the Committee session on 5 February we would try to provide.

First, the Commission was not able to discuss further the respects in which victims' views could be taken into account when life prisoners are being considered for release. Although this was on our agenda for a meeting on 12 February, we had so much else to discuss that day that we did not reach that item.

Second, in the time available and with our limited resources we were not able to obtain information for the Committee about the law on life prisoners in the Republic of Ireland. No doubt when the Irish Human Rights Commission is fully operational (within the next month or so) it will be able to provide information about Irish law to any Assembly Committee which requests it.

I am sorry the Commission was not able to be more forthcoming but I hope the Committee will understand our difficulties.

Thank you for your letter of 5 February to Heather Hayes, inviting Dr Reid or a senior official from the Northern Ireland Office to appear before the Committee to explain the background to the draft proposals. The Secretary of State has asked that I reply on his behalf.

The Secretary of State is unfortunately unable to accept the Committee's invitation due to pre-existing diary commitments. He is aware that the Committee are in possession of all the documents, relating to the Life Sentences (NI) Order 2001, laid before Parliament on 15 January but appreciates that there may be some points of detail on which the Committee would like clarification. In view of the time constraints within which the Committee are working he would therefore be happy for his officials to respond quickly to any written questions the Committee may have on the draft proposed Order. The Committee may wish to direct any queries to either Mr Douglas Bain, Director of Services at the headquarters of the NI Prison Service, Dundonald House, Belfast BT4 3SX, or to his Deputy Director, Mr Tom Haire.

P G PRIESTLY
PRIVATE SECRETARY
12 February 2001

1. Probation Board for Northern Ireland (PBNI) is a non-departmental public body accountable to the Secretary of State. The Probation Board was established by the Probation Board (Northern Ireland) Order 1982. Under Article 4 of that order the Board shall:

a. Secure the maintenance of an adequate and proficient Probation Service.

b. Secure that arrangements are made for persons to perform work under Community Service Orders.

c. Provide such probation officers and other staff as the Secretary of State considers necessary to perform social welfare duties in prisons and young offenders' centres; and

d. Undertake such other duties as may be prescribed.

2. The Board may, with the approval of the Secretary of State, also make and give effect to schemes for the supervision and assistance of offenders and the prevention of crime.

3. Prior to 1982 the Probation Service was a part of the Civil Service within the Ministry of Home Affairs and the Northern Ireland Office.

4. The Probation Board covers the whole of Northern Ireland with area teams based at 11 locations and with additional district offices from which service is provided.

5. Probation Board also has teams working in the two prisons, Maghaberry and Magilligan and the Young Offenders Centre at Hydebank.

6. Main services of the Probation Board are:

• Provision of Pre-sentence Reports to courts - youth courts, magistrates courts, crown and appeal courts.
• The supervision of persons placed on community sentences.
• Probation Orders (with or without additional requirements).
• Community Service Orders.
• Combination Orders.

7. An important duty is also the post-release supervision of certain categories of persons sentenced to imprisonment.

• Custody Probation Orders - (Article 24 Criminal Justice (NI) Order 1996).
• Supervision of sex offenders made subject to Licence on release. - (Article 26 Criminal Justice (NI) Order 1996)
• Supervision of persons released from life imprisonment or equivalent.

(Currently the Probation Board can provide supervision as part of the Licence arrangements whereby a life sentence prisoner or prisoner sentenced at Secretary of State's pleasure is released into the community. This authority emanates from the Prison Act (Northern Ireland) 1953 and the Article 46 of the Criminal Justice (Children) (NI) Order 1998.

8. Under present arrangements Probation Board staff are involved with life sentence prisoners and young persons sentenced at Secretary of State's pleasure at four stages.

(i) Work with life sentence prisoners and/or their families from start of sentence until their review by the Life Sentence Review Board.

(ii) Preparation of probation reports to the Life Sentence Review Board.

(iii) Work with these prisoners on preparation for release.

(iv) Supervision and support of released prisoners. Probation staff provide reports to the life sentence unit on those persons released on licence and under supervision.

9. We work in association with the Northern Ireland Prison Service, to provide a range of resettlement opportunities in prison which integrate with community supervision.

10. The Probation Board for Northern Ireland as a public body is accountable to the Government, the Courts and the Community.

We aim to carry out all our responsibilities in a manner which contributes to public protection and which enhances the well-being of the communities in which we work.

11. The Review of the Criminal Justice System in Northern Ireland published in March 2000, included consideration of the arrangements for the release of life sentence prisoners and of young persons 'held at the Secretary of State's pleasure'.

12. The Probation Board shared its opinions with the Review Group during the course of its deliberations and also after publication.

13. The PBNI supported the idea of an independent body that should take over all the work of the Life Sentence Review Board.

14. We also endorsed the idea that the whole process and not just retribution and deterrence should be judicially grounded. The board emphatically endorsed a move away from the old Life Sentence Review Board system. As an alternative the model of the Sentence Review Commission was viewed as much more appropriate. However, it was created in a particular set of circumstances and the Probation Board felt that, while recognising the significant reforms proposed, the review should go further in developing a new model with the principles laid out in a positive and expansive manner, rather than a minimalist conformity to human rights and European Court requirements.

15. The PBNI therefore sought a model with the following elements:

• Court based decision on the period of time in custody.
• Strong element of judicial input into decision to release.
• Decision predicated on grounds of risk of reoffending (thus harm to the public).
• Decision making body to provide access for personal appearance and representation.
• Agency staff providing information, assessment or opinion should be separate from the decision makers.
• Openness and transparency should translate to prisoner access to reports supplied to the decision makers.
• Decision of the body to be binding on all.

16. PBNI welcomes the introduction of a new system for the release of young persons sentenced at the Secretary of State's pleasure and adults sentenced to life imprisonment. It makes sense to us that the new system will replace the Life Sentence Review Board in being able to deal with cases of all three categories of indeterminate sentence, viz:

a. Those sentenced at Secretary of State's pleasure.

b. Those prisoners on discretionary life sentences.

c. Those prisoners with mandatory life sentences.

17. It is PBNI's view that visibility, openness, accessibility and accountability are essential elements of any new system. The Board acknowledges their incorporation within the order.

18. The Board's preference is for a system that is judicially grounded with regard to the four dimensions:

(i) retribution

(ii) deterrence

(iii) risk

(iv) rehabilitation.

19. The new system caters for retribution and deterrence at the sentencing stage. The judges will be asked to set a period of custodial time to be served in order to meet the necessary punishment/deterrence for the offence. (Article 5).

20. After the stated tariff time has been served, consideration can be given to the nature of the risk and in what circumstances the prisoner might be released. This role will be undertaken by a body of Commissioners which is judicially grounded through being independent and having at least one member holding judicial office.

21. These Commissioners will be able to allow the prisoner and his representative to be present. This is a successful component of the Sentence Review Commission experience and we welcome its inclusion here within the new order.

22. Openness is catered for in the section that allows for a prisoner to have access to the reports that are supplied to the decision makers. There may be some situations in which consideration needs to be given as to whether some information within reports or reports themselves be withheld from the prisoner. A decision on this can be made by the Commissioners in individual cases. It is PBNI policy to share reports with the prisoner where possible. (The Life Sentence Commissioners' Rules 2001).

23. Accountability is evidenced by the separation of agencies and staff who are providing reports, information, assessment or opinions in relation to possible release from those persons who are acting as Commissioners - a decision making function.

24. The Probation Board emphasises the knowledge skills and competence that its staff have gained and continue to develop in respect of providing quality assessments and risk management plans in relation to persons who have committed serious violent offences . This is a body of knowledge and expertise that we clearly feel should be recognised by and represented among Commissioners. It is facilitated in Part 2 of the Order Article 3 (d) and (e), which state that, "at least one person appearing to the Secretary of State should have knowledge and experience of the supervision or after care of discharged prisoners and (e) at least one person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders."

25. However in keeping with the principles outlined in our model we accept that decision makers should not include members of the staff of the Probation Board or indeed of the Prison Service or related civil servants. We recognise that this will cause difficulties in a region such as Northern Ireland as it will exclude many of those with the expertise to assist in decision making. It can be alleviated by the quality of the information provided. However, it could also be mitigated through interchanges with England and Wales, Scotland or the Republic of Ireland.

26. As another element in our model we had sought authority for release decisions to be vested in the Commissioners. This is facilitated in Article 6.

27. The new Order would enable Probation Board staff to continue to undertake duties currently carried out in relation to life sentence prisoners (refer to para.7 above). Probation Officers will be empowered to prepare reports for the Commissioners. The elements of such a report can include an assessment of the risk of reoffending, a programme of supervision and recommendations regarding any special licence conditions where these are relevant to a particular case. (The Life Sentence Commissioners' Rules 2001 Schedule 1 Part B).

28. During the period of imprisonment the Board would be in a position, through partnership with the Prison Service, to contribute to the assessment of risk and to the provision of individual and group programmes.

29. Where a supervisory element is part of post-release licence, we will have the opportunity to put forward a plan of how the prisoner could be managed within the community.

30. As part of the supervisory function of a life licensee in the community we would prepare Progress Reports and would work to standards of practice to be agreed with the Secretary of State.

31. If, during the supervision of any life licence, we form the judgement that his/her behaviour is of such a nature that we consider that the individual is a danger to him/herself or to others, we would be able to ask for consideration to be given to the revocation of his/her licence. It is important that there is a procedure in place including a referral and response mechanism available to the supervising officer.

32. Accountability is achieved through the Commissioners being asked to consider the case either prior to, or on the individual's return to prison, depending on the urgency of the situation. Any report made by us would form part of the consideration given by the Commissioners, and we could be called upon to justify our opinion. (Article 9).

33. Although a Life Licence remains in force until death it is important that there is a means by which after a period of time the Probation Board can give its opinion that the supervisory element of the licence can be varied or cancelled. In most cases a Life Licensee will have achieved a level of stability in his/her new life in the community whereby supervision by a Probation Officer is no longer deemed necessary in order to protect the public from serious harm (Article 8 provides for this).

Within prisons and post release the Probation role can be carried on within the context of an inter- disciplinary and inter-agency approach.

BRENDAN FULTON
ASSISTANT CHIEF PROBATION OFFICER
5 February 2001

Further to our written submission and our oral responses to the Ad Hoc Committee, I am pleased to provide the following information.

Our information indicates that there have been a total of 33 prisoners released on supervised Life Licence, under the system in Northern Ireland over the past 20 years. This figure includes person/s 'sentenced at the Secretary of State's pleasure'.

Five of these released prisoners had their Life Licence revoked while under supervision of the Probation Service in Northern Ireland. Two further persons had their Licence revoked after the supervision element of their Licence had been cancelled.

Those persons whose Life Licence was revoked while on supervision, were in the community on average 2 years - the range being from 4 months to 5 years 5 months.

Those persons whose Life Licences were revoked after cancellation of the supervision element, were in the community between 4 years 3 months and 6 years 5 months. (The supervision aspect in these cases lasted from 3 years to 5 years).

BRENDAN FULTON
ASSISTANT CHIEF PROBATION OFFICER
16 February 2001

1. The general direction of this Order is in line with the prevailing situation in the rest of Europe and current developments in the rest of the United Kingdom. In nearly all other European countries murder does not attract a mandatory life sentence. More usually prisoners are given a determinate sentence. Even when a life sentence is provided for, decisions as to whether and when a prisoner is released are matters for the judiciary rather than the Executive. This reflects a general view that matters regarding the deprivation of liberty should be decided on by independent and impartial judges, operating on the basis of clear criteria. To leave such matters in the hands of politicians is always to risk arbitrariness and decisions being prey to prevailing public opinion. Research on the operation of the life sentence release process in England (notably Justice Sentenced to Life , 1996) has confirmed this impression. It is noteworthy that legislation has recently been introduced in Scotland which will remove the discretion of the Justice Minister. In England the power of the Home Secretary to decide on the tariff, preserved by Section 29 of the Crime (Sentences) Act 1997 is currently under challenge in the Court of Appeal in R v Secretary of State for the Home Department ex parte Anderson and Taylor

2. The need to comply with the provisions of the Human Rights Act also argue for a move towards the sort of regime envisaged in this Order. In the case of Thynne, Wilson and Gunnell v United Kingdom (1991) the European Court indicated that decisions on whether discretionary life sentence prisoners remained a risk after they had served the normal sentence for the crime they were convicted of was the sort of decision which should be subject to judicial supervision to comply fully with Article 5(4) of the European Convention on Human Rights. In V and T v United Kingdom (1999) the same Court indicated that the process of setting a "tariff" for HMP prisoners (SOSp equivalents in England) in respect of how long they should serve before being considered for parole, was essentially a judicial exercise. Article 6(1) of the Convention hence required that this exercise be conducted by an independent and impartial judicial officer. Although Northern Ireland did not formally operate a system of dividing sentences into "tariff" and "risk" phases it is clear that the old Life Sentence Review Board was relying on similar concepts. This clearly rendered them vulnerable in relation to discretionary lifers and SOSp prisoners. After V and T it seemed that the previous 1994 decision of Wynne v United Kingdom (which saw no need for judicial involvement in the release of mandatory lifers) was unlikely to be sustained in future. Hence the release procedures for mandatory life sentence prisoners was also vulnerable to Human Rights Act challenge. The NIO is to be commended for anticipating this and seeking to change the legislation.

3. Overall therefore this legislation, especially by reducing the role of the Secretary of State for Northern Ireland and establishing a specific body of Life Sentence Review Commissioners, moves in the right direction as regards Human Rights Act compliance. It also moves in the direction of the approach to release adopted in other European countries. However there are some matters of detail where clarification or change may be appropriate.

4. Article 3(4)(ii) directs the Commissioners to have regard to the desirability of (a) preventing commission by life prisoners of further offences and (b) securing the rehabilitation of offenders when "discharging any functions" under the Order. However this would seem to lead to some confusion with the Commissioners' power under Article 6(4)(b) to release prisoners providing they are satisfied that it is no longer necessary for the protection of the public. It seems to add extra criteria beyond those set out in Article 6(4)(b) and criteria which are uncertain. For example would this lead to life sentence prisoners being detained if Commissioners feel they are likely to commit traffic offences or minor drugs offences but unlikely to put the public at risk? How would the issue of rehabilitation be treated? Some Commissioners might feel a person's chances of rehabilitation are improved by getting out of prison, others might feel a longer spell inside would be more helpful. These criteria appear in Section 32(6)(b) of the Criminal Justice Act 1991 in England but only in relation to what directions the Secretary of State might give the Parole Board as opposed to the Board's own powers. They are unnecessary and confusing in the way they are proposed in this Order and it would be better to delete them.

5. Article 5(3) seems to preserve the possibility of "whole life" tariffs. The Home Secretary's power in England to set "whole life" tariffs was upheld by the House of Lords in Ex parte Hindley (2000). However such a power seems at variance with Article 10(3) of the International Covenant on Civil and Political Rights which indicates that "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation". Whole life tariffs offer little hope of rehabilitation for any prisoner.

6. Article 5(5) appears to preserve the possibility of a whole life tariff even in respect of SOSp prisoners. This would clearly run into problems with Article 3 of the European Convention as the Court in Hussain v United Kingdom (1996) indicated a view that whole life tariffs for juveniles would raise serious questions in respect of amounting to inhuman or degrading punishment. Providing in Article 5(6) that the Secretary of State should refer the case to the Commissioners when he has formed the opinion that it is appropriate to do so is not an adequate safeguard, he or she may conclude that it is never appropriate to do so.

7. Overall Article 5 is not clearly expressed. It would appear that the aim of Article 5(1) is that in all cases judges should set a tariff but that in cases where they feel a whole life tariff is appropriate they can direct that it is not employed. However one could read Article 5(3) as suggesting that in such cases courts should not set a tariff, in which case there is no direction to take effect in respect of Article 5(4) and 5(5). Also Article 5(4) appears to envisage the Secretary of State deciding not to refer a prisoner to the Commissioners even after he or she has decided that it is appropriate to make such a reference. It is difficult to see why this should be so.

8. The criteria for early release in Article 6(4)(b) require a prisoner to establish that he or she is not at risk of causing serious harm to the public. There is evidence from studies of Discretionary Lifer Panels in England that this has encouraged a very cautious approach to release. Arguably full respect for the right to liberty might require the onus being on the authorities to satisfy the Commissioners that someone does pose a risk of serious harm to the public.

9. Article 6(5)(b) envisages prisoners being able to refer cases back to the Commission after two years from the refusal of a previous release application. There is some indication from the European Court that 2 years may be too long to comply with Article 5(4) and that a shorter period might be envisaged, see Oldham v United Kingdom (2000).

10. Article 9(2) permits recall by the Secretary of State where "it appears expedient in the public interest to recall that person". Although presumably taken from equivalent English legislation, this envisages a different test being applied by the Secretary of State as regards recall than that applied by the Board under Article 6(4)(b) when deciding on release. At the very least there is a need for the Secretary of State, as in England, to make directions as to when this power may be used. However it does not appear that the Order gives him or her power to do this.

11. Schedule 1 makes it clear that Commissioners will be appointed by the Secretary of State. While this is not automatically contrary to Article 6 of the ECHR there is a need to offer "sufficient safeguards" of the independence of those appointed. An obvious way of doing this is to set out their tenure (perhaps for 5 years). However the Schedule currently gives no indication as to how long they might be appointed for.

12. Article 3 of Schedule 2 and Rule 15 of the Commissioners Rules envisage the Secretary of State certifying that certain information should not be disclosed to the prisoner or to his or her representative. The European Court has indicated concern as to whether the "equality of arms" requirement of Article 6 can be complied with in such situations of non-disclosure (Tinnelly v United Kingdom 1996, Fitt and Jasper v United Kingdom 2000). While the provision for a "Special Advocate" in Rule 17 may go some way towards complying with Article 6 (a majority in Jasper appeared inclined to this view) there remains the problem that the initial certification by the Secretary of State appears to be beyond review. To ensure compliance with Article 6 it might be better if the Commissioners were entitled to decide upon the issue of whether such material should be certified confidential, in the light of representations by the Secretary of State and the prisoner's representatives.

13. The English provisions on release of discretionary lifers and recall of mandatory lifers provide for guidance to be given to the Parole Board on how they exercise their discretion regarding risk assessment for release. While some doubts have been expressed as to how valuable these are and also to what extent they are used, it would seem useful to offer Commissioners some guidance in dealing with a difficult question. It might also be helpful to prisoners to see the sort of criteria that might be employed by the Commissioners. At the moment however no guidance appears in the Order or the Rules, nor is there power for the Secretary of State to issue the same. Although there may be doubts as to whether it is appropriate for the Secretary of State to be issuing guidance it might be helpful to allow the Commission to consult on and publish the guidance it is seeking to act upon.

PROFESSOR STEPHEN LIVINGSTONE
SCHOOL OF LAW
6 February 2001

I am writing to let you know that on this occasion the Society does not propose to accept the Committee's invitation to attend and/or submit evidence.

The relevant Committee within the Society has noted the contents of the proposed Order. Our preliminary assessment is that this is not an exercise to which we can add significant value. The principal policy underpinning the draft Order has arisen from a recommendation made as part of the Criminal Justice Review. The Society has expressed no opinion on that particular recommendation.

It is possible that we may be providing some limited comments in due course to the Secretary of State on some of the more technical aspects of the proposed Order and Rules. If you think this would be helpful, I should be happy to arrange to let you have a copy of any such comments in due course, although I anticipate that these comments will not be available until early to mid-March.

Although, for the reasons I have given, we are not able to assist the Committee in any substantive way on this occasion, as a general rule, we are keen to be available to the Assembly and Committees to assist on any issues where we can provide a distinctive professional perspective based on the experience and expertise of solicitors. In this connection, should there be any specific questions or matters arising from the draft Order on which the Committee thinks we could be of some assistance, I should be happy to deal with these on request.

Thank you for recognising our potential interests in this draft legislation.

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