MINUTES OF EVIDENCE
TUESDAY, 6 FEBRUARY 2001

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

Witnesses:

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

161.

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

162.

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

163.

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

164.

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

165.

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

166.

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

167.

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

168.

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

169.

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

170.

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

171.

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

172.

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

173.

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

174.

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

175.

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

176.

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

177.

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

178.

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

179.

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

180.

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

181.

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

182.

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

183.

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

184.

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

185.

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

186.

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

187.

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

188.

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

189.

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

190.

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

191.

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

192.

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

193.

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

194.

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

195.

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

196.

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

197.

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

198.

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

199.

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

200.

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

201.

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

202.

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

203.

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

204.

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

205.

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

206.

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

207.

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

208.

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

209.

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

210.

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

211.

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

212.

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

213.

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

"at the appropriate stage direct that the early release provisions shall apply."

214.

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

215.

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

216.

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

217.

Prof Jackson: That criticism is fair with regard to existing life prisoners. There is a problem because, while the Order looks forward, it deals with the question of existing life prisoners and suggests that that will still be a matter for the Secretary of State to refer. So far as the future is concerned, your criticism goes a little bit too far. The Secretary of State's involvement will be limited to situations in which the judge has set a life tariff, meaning "Life should mean life". The setting of a life tariff is rare. Of all of the convicted murderers in England, very few - if any - are serving a life tariff. Admittedly those are controversial cases and a judge could say, "Life should mean life". However, under Article 5 of the draft Order that is the only circumstance in which the Secretary of State has the power of review and can send the case to the Life Sentence Review Commissioners.

218.

The appointment of the Commissioners could be an issue for concern. If the Secretary of State is to appoint these Commissioners, one might like to see greater independence in the process. It is also important to know why there is no Life Sentence Board. These Commissioners will be supported by civil servants from the Prison Service. If, on the other hand, there was an independent board of which the Commissioners would be part - similar to the Criminal Cases Review Commission or other such bodies - then it would be staffed entirely by their own people. That would create a culture of independence that would be greater than under the present provisions.

219.

Mr Attwood: The culture of independence has been undermined further by the Criminal Justice Review. The Probation Board has been brought into the mainstream of the criminal justice family.

220.

Mr Dalton: I am particularly interested in the comments you made on the possibility of a whole life tariff being handed down by the court. Is it your contention that the court should not, under any circumstances, be able to award a whole life tariff to a defendant, or is the objection simply that the Secretary of State is the one who determines whether or not that will have effect?

221.

Prof Jackson: There are two different objections there. The first one is as question of principle: should there be a possibility of a life tariff? My own view is that for people who are under 18, it is a very sweeping thing at that time in someone's life to say that the tariff should be life, and that life should mean life. I would certainly object, and I think that human rights provisions go along with that. There are strong objections to that for people under 18.

222.

As for adults, it would have to be a very rare case, and no doubt there would be views either way about whether there should ever be a situation like that. The second objection I have is that too much discretion is given to the Secretary of State, once there is a whole life tariff, to decide when to send the case to the Life Sentence Review Commissioners. The Order should be clear about the circumstances under which the case should be referred to the Commissioners.

223.

Mr Dalton: Schedule 2, line 15, allows the Secretary of State to say that certain information should not be disclosed to the prisoner or his representatives. What is the major problem that you have with that? Do you not foresee circumstances in which information may need to be confidential? Do you not think that the appointment of a special advocate deals with the article 6 problem?

224.

Prof Jackson: The appointment of the special advocate goes quite a long way towards meeting human rights objections, but I do not think it goes the whole way. As I understand it, under the proposed Order the Secretary of State can deem certain information to be confidential. However, human rights judgements in Europe have tended to say that when the Secretary of State or Government want to classify certain information as confidential, they should get the court to sanction it. They also say that there should be a judgement by the court to make that information properly confidential. There is an independent judgement on how confidential it is. Only then, if it is not confidential, should it be disclosed, but at least the court establishes that. That certainly seems to be what happens in criminal cases. There was a case last year wherein it was made very clear that it was a breach of Article 6 of the European Convention on Human Rights, in a criminal case, for the prosecutor to decide what should be privileged.

225.

Mr J Kelly: In this legislation we are looking to the future, not the past. We are looking at a different scenario. The notion of retribution and deterrence might not have been as applicable to those who considered themselves political prisoners as it might be to other categories of prisoners.

226.

On the question of political interference and having independent reviews, you mentioned that "Life is life" very rarely comes into play, except for Hindley and Brady, for example, which is very much a political issue. The Bulger case was somewhat different. They were two juveniles who had to make a transition to adulthood. However, there is a wealth of information to show that eight years imprisonment can have a debilitating effect. Therefore, fulfilling the criterion of public safety becomes more difficult, rather than less, for a prisoner who has served more than eight years. Would you like to comment on that? Understandably, the ability to fulfil a rehabilitative role is diminished.

227.

Prof Jackson: That is an important question and it raises many important issues. As to what extent there should be rehabilitative schemes for prisoners in prison, present resources do not often allow for that. That results in the situation that you mentioned, namely that people who serve a number of years in prison end up being unable to cope with life outside. We should be doing the opposite, that is, trying to create conditions for them in which they can deal with life outside.

228.

In setting the tariff, there are many considerations to be taken into account. The victim is a consideration at that stage. You have to look at that, at what society will accept, and so on. You cannot look at the issue entirely from a rehabilitative point of view. That is a matter for the judge. The importance of this legislation is that once that is set, these matters of risk need to be looked at in the context of what prisoners, in prison, are given to do. Guidelines on risk and resources are important.

229.

Mr J Kelly: Is it the relatives of the victim that we are concerned with, rather than the actual victim - particularly if we presume that the victim, in the case of a murder, is no longer looking at retribution? Could that also become emotive?

230.

Ms McWilliams: There is no easy way to put that.

231.

Mr J Kelly: For example, I was in prison during the 1950s, when people who were non-political who were in for murder got out after seven years.

232.

Ms McWilliams: We are looking at the human rights implications when we talk about the importance of guidelines for risk assessment. Clearly, that means reoffending as well as deterrence and retribution. You mentioned English provisions in relation to some guidance. Can we see the guidance that is currently available to the Parole Board?

233.

Secondly, who should produce that guidance? I understand why you are concerned that that is not set out in the Order. Although there may be some doubts as to whether it is the responsibility of the Secretary of State, nonetheless it could help the Commissioners. Since we are talking about risk assessment in general terms, it is possible to look at what is currently available, but perhaps we should also look at how we can build on that.

234.

Mr R Hutchinson: Do you agree that the human rights of the victim are as important as the rights of the perpetrator?

235.

Ms McWilliams: I want Professor Jackson to answer that question.

236.

Prof Jackson: I can make available the guidance that is provided to the Parole Board in England for mandatory life sentence prisoners there. It was drawn up by the Home Secretary. As you say, there is an issue as to whether it is appropriate that the Secretary of State should be responsible for that. It is not clear who should be doing it.

237.

However, these guidelines are something that the Commissioners will have to evolve over time. It would be a good exercise for them to engage in consultation with the public and with people like yourselves in order to draft those. That must be done in a way that appears to be more open and transparent, rather than how it was in England, where it was done mostly by civil servants for the Home Secretary.

238.

A key point is that initially one would like to see some guidelines, or at least provision in the Order for these guidelines to be drawn up. We will be calling those people more into account than at present. Their job is to look at risk, but there is no indication as to how they are to do that.

239.

Ms McWilliams: If the guidelines were transparent and published it would take out the element of discretion.

240.

Prof Jackson: That is exactly right.

241.

Ms McWilliams: It would also address the issue from both sides.

242.

Prof Jackson: Issues will be raised about the extent to which the victims should be taken into account. It would be much better if that issue were transparently addressed. That would allay public concerns as to what they should do.

243.

The Deputy Chairperson: I think that that is indeed necessary. We would all agree on that, and that is a very good point to end on. Thank you for your submission. If you can let us have the further information that Ms McWilliams requested, that will be helpful to us in our consideration. I know that you are as busy as we are; it was very good of you to appear before us, and your submission was very interesting.

244.

Mr Close: What would that be?

245.

DS Thompson: There would need to be approximately 25 people with various backgrounds to make an impact.

246.

Mr Close: Would that include a director for Northern Ireland?

247.

DS Thompson: There will be an overall national Director. There should also be an assistant director based in Northern Ireland. He would be solely responsible for Northern Ireland. Ideally that is what is necessary.

248.

Mr McNamee: Significant powers are already available to the RUC under the Proceeds of Crime (Northern Ireland) Order 1996. Some of the investigative powers under that Order are unique to the North, and they will be enhanced by the introduction of the Financial Investigations (Northern Ireland) Order 2001. You said that the RUC has identified approximately 180 individuals who are worthy of investigation. Does that represent 180 out of 200? How many have you not identified? With regard to the existing powers and those people, how is the existing legislation inadequate in view of the fact that there are powers unique to the North?

249.

DS Thompson: I cannot say how many people have not been identified. The purpose of the exercise was to identify people with assets, and that is the number that we came up with. There may be some still unidentified, but I suspect that we are looking at the bulk of the number already.

250.

With regard to inadequacy of the Proceeds of Crime (Northern Ireland) Order 1996 the new legislation will bring together separate legislation, which has existed on the mainland, and re-enacts the Proceeds of Crime (Northern Ireland) Order 1996. However, there are enhancements, particularly in respect of mandatory assumptions. Perhaps that was the weakness in the Proceeds of Crime (Northern Ireland) Order 1996. You quite rightly point out that we have unique power under the Proceeds of Crime (Northern Ireland) Order 1996, which is being re-enacted to some degree and enhanced in the Financial Investigations (Northern Ireland) Order 2001.

251.

Mr McNamee: Will the Bill equate the powers of investigation throughout England, Wales and Northern Ireland?

252.

DS Thompson: It standardises the legislation throughout the three areas taking into account the different judicial procedures in Northern Ireland.

253.

Mr Kane: Will CARA pursue paramilitaries who are on ceasefire, as there is little doubt that is they who have assumed the drugs franchise in Northern Ireland?

254.

DS Thompson: CARA will tackle individuals. It is immaterial as to whether those individuals are members of organisations. CARA will not be there to target an organisation per se. If individuals have substantial assets from crime then they will be the subject of attention.

255.

The Chairperson: CARA will be a separate statutory body set up under the legislation. There will be a memorandum of understanding between the RUC and the CARA. Can you give any indication of the relationship that will exist between the police and CARA when it is set up? How do you envisage that operating?

256.

DS Thompson: I envisage that it will be a very close relationship. It is not beyond the bounds of possibility that police officers will be seconded to it - particularly in the early stages - to get it up and running.

257.

The Chairperson: Will it be a matter of the police informing CARA that there are a number of individuals that are worthy of examination under the new legislation?

258.

DS Thompson: Yes. They will have access to a considerable amount of police intelligence.

259.

The Chairperson: Have you had any relationship with the Criminal Assets Bureau in the Republic of Ireland regarding its operations, or learning from it?

260.

DS Thompson: We have worked with them on a couple of joint investigations, and have operated simultaneously. They have pursued individuals in the South and we have done likewise in the North against those involved in the same criminality. The Criminal Assets Bureau has taken forward the aspect of confiscation regarding its jurisdiction. That is the closest we have operated, although we are familiar with the mechanism of the Bureau.

261.

The Chairperson: As a professional police officer, how would you rate the success of the Criminal Assets Bureau?

262.

DS Thompson: The Criminal Assets Bureau has only been operating since 1996 and its legislation is rather different. Confiscated assets are held for seven years before disposal. That is not going to happen in CARA. Similarly, the bureau is headed by a police officer and is very closely aligned with the Garda Síochána. CARA will be a stand-alone agency outside the police service. I do not think that it is the intention that it be headed by a serving police officer, but it will have a close relationship with the police. There are some distinct differences between the two organisations.

263.

The Chairperson: Thank you, Mr Thompson. We will welcome any further information you can give.

MINUTES OF EVIDENCE
THURSDAY 26 APRIL 2001

Members present:
Mr A Maginness (Chairperson)
Mr Attwood
Mr Close
Mr Clyde
Mr Ervine
Mr Kane
Mr McNamee

Witnesses:
Mr V Harvey (National Criminal Intelligence Service)

264.

The Chairperson: Thank you very much, both for coming before us this morning and for the documentation that you have given to the Committee. Would you like to make an opening statement?

265.

Mr Harvey: I listened to the statement made by the RUC earlier this morning and I do not have much to add in general terms. A few comments about the National Criminal Intelligence Service might be of help.

266.

The Chairperson: Yes, that would be very helpful.

267.

Mr Harvey: Although created 10 years ago, we gained independent status as the National Criminal Intelligence Service three years ago. We are a multi-agency, law-enforcement organisation that serves the whole of the United Kingdom. That, in itself, is unusual. Although set up under the Police Act 1997, and predominantly seen as a police organisation, we consider ourselves to be a multi-agency organisation. About one third of our strength consists of police officers. The next largest component consists of customs officers, and almost every other agency that has some kind of law-enforcement role in the United Kingdom is represented.

268.

One of our principal roles is to prepare a UK threat assessment, which is an overview of actual crime impact upon the United Kingdom, as distinct from crime that is reported. We try to find out what is going on underneath the layers, so we include crimes that do not normally come to the attention of the police. We also focus our intelligence-gathering processes on the top tier of criminality throughout the United Kingdom. We have a number of specialist desks that focus on particular crimes. We also provide a number of services to law enforcement, ranging from the interface with Interpol and Europol to the UK National Schengen Information System or Sirene Bureau, which will be based here. We have our own liaison officer network throughout Europe in order to facilitate law enforcement enquiries, wherever they may be.

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I am in charge of the UK division. That, by definition, includes offices throughout the UK and the various specialist intelligence desks for particular crimes. Those vary from heroin, cocaine and synthetic drugs to serious sex-offenders and counterfeit currency. I am even responsible for the football hooligan desk. I should emphasise that that only applies to English hooligans, as we do not do any work on other countries' hooligans.

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Those are, loosely, our terms of reference. We are currently about 700 strong and are due to grow, through the various different funding systems, to about 900 over the next 12 months. I hope that we will continue to grow.

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The Chairperson: Thank you. Looking at the draft Proceeds of Crime Bill and at some of the points made in your documentation, I suppose the most innovative aspect of this draft Bill is the civil recovery issue. That represents quite a change and a departure from normal legal standards in the UK and in Northern Ireland. How would you answer the argument that that is going too far in trying to protect society from criminals by endangering the human rights of individuals who are the subjects of investigation?

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Mr Harvey: One can see the true nature of the concern. Human rights has been a theme from the outset and throughout the work that the organisation has been involved in. As law enforcement officers, we came to it from a simple basis, which is that there is no human rights legislation anywhere that says that criminals have the right to enjoy the continued profits of their crimes. Their victims also have human rights that need to be protected. As long as we can get the balance correct, then that is right.

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The focus of the European Convention on Human Rights (ECHR) is proportionality and necessity. The people whom we envisage being brought to the attention of the Criminal Assets Recovery Agency (CARA) are those whom we bring through necessity, because we cannot get a criminal prosecution in reasonable terms. This is the appropriate means to bring them before the courts in some way. There are a whole host of reasons why they may not be readily available for criminal prosecution. We are strong on the fact that if criminal prosecution can take place, it must still have priority. However, in the case of people higher up in the structure and funding of organisations, it has proved to be virtually impossible to associate them directly with specific crimes. The cost of trying to bring that type of case is disproportionate.

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The National Criminal Intelligence Service (NCIS) feels that criminal prosecution is an essential weapon in combating criminals rather than letting them continue to grow. Of course, many of these criminals, particularly in the drugs trade, are extremely cash-rich. If we improve our tactics to prevent money-laundering, criminals will not be able to bring their money back into the system. However, they have to do something with the money, and the most obvious thing to do is to divert the money to other crimes and the funding of other crimes. They may use drug money to buy a new counterfeit printing press or to bring in more bootleg beer. We are looking at a wide range of activities by those types of people, because they are cash-rich. We must find a way of stopping that.

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The Chairperson: We had the chief commissioner of the Human Rights Commission here the other day. He accepted, of course, that criminals should not enjoy the fruits of their criminal endeavours, but one of his worries was the concept of civil recovery itself. He was not opposed to innovative measures, but he was concerned about shifting the onus from the state to the individual under investigation to show that, in fact, his assets were acquired legitimately. Should that be the situation? Could CARA or another such organisation not operate under the traditional law that dictates that those who are making the accusations discharge the onus of truth?

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Mr Harvey: My understanding is that it has not quite shifted that far. There were those in law enforcement who sought an actual reversal in the burden of proof so that we, as law enforcement, could bring the person either before an agency or, through an agency, to the High Court and ask him or her to prove that the money had been obtained legitimately. That is not the case. CARA, other such groups and the High Court must be convinced that the person is involved in criminal activity. It is then up to the person to use the opportunity to explain how he or she comes to have the money, given that we can see no legitimate way in which it could have been earned. That is not quite the same, I would argue, as saying that the burden has suddenly shifted to the person and that we will descend on them and ask where the money came from. We must prove that the person is involved in criminal activities.

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The criminal standard of proof is "beyond reasonable doubt". That is why - as we saw in the case of the development work - if there is any element of doubt in the whole thing, it gives the criminal the opportunity to walk away with the proceeds of the crime and continue to enjoy them. The last thing that we want is for this type of innovative legislation not to work.

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The Chairperson: To go back to the mechanics of the draft Bill, is it envisaged that the director of CARA will sue the person, and that CARA must show that that person has a criminal lifestyle? Is that the first stage of the process?

279.

Mr Harvey: Yes.

280.

The Chairperson: At that point, is the onus of proving that the assets were acquired legitimately shifted to the defendant?

281.

Mr Harvey: The opportunity to explain how the assets were acquired is shifted to the defendant. We are talking about a person who has never worked - only drawn the dole and equivalent benefits - yet has a million-pound house, a flat in London and a villa in Spain. I am not exaggerating. If you asked me how I got my house, I could quickly show you. The innocent person has nothing to worry about. The other side is, of course, that we must build appropriate structures so that we are satisfied that those people who are brought to the attention of CARA and the cases that the agency takes forward are targets worthy of attention. It must not be seen as some sort of back-door route for shoddy law enforcement.

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The Chairperson: To finish the point about procedures, am I right in saying that civil recovery is a two-stage process - establishment of a criminal lifestyle, then the shift in the onus of proof to the defendant - and that that is all done in the context of a High Court action?

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Mr Harvey: Yes, in accordance with High Court standards. There are no short cuts.

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The Chairperson: The High Court has to be presented with actual evidence. Pure intelligence would not be sufficient?

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Mr Harvey: Absolutely, regardless of the degree of that intelligence or its relevance. I suggest that that will require counsel, and perhaps judges, to be more highly trained. It will at least require them to be informed on the structure so that they have an understanding of the processes behind it.

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Mr Kane: Has the National Criminal Intelligence Service (NCIS) been the subject of any breach of security in the last two years?

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Mr Harvey: No. We are subject to reports on all our activities by the Data Protection Commission and the European Court of Human Rights. Obviously, our various applications are examined for intrusive surveillance, et cetera. We are very strictly monitored, and work in accordance with the law. I cannot think of a single breach. I would not like to say that we have done everything perfectly, but there is a difference between making a mistake and having overt breaches. Any mistakes would normally be in dates of cancellations and such.

288.

Mr Kane: How much work has been focused on the evasion of duty on fuel imported from the Irish Republic in the last year?

289.

Mr Harvey: Virtually none. The NCIS presence in Northern Ireland is nominal. We have one police officer and one support worker. It is perhaps relevant to say at this stage that we sought increased funding in the last budgetary bid in order to enlarge the office here, but it was not given to us. We are now following other routes. That said, a Bill is before Westminster that will change the way we are funded, so there is a future opportunity. I am on the organised crime task force, and we see that there is a major tool to be applied here.

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Criminals and their commodities see no boundaries. To think of them as having any sort of regional restriction is a common misconception. When we attack major drug dealers in, for example, Liverpool or Manchester, we see that their trade routes extend to Northern Ireland and the Republic and into Scotland. The integration and melding of all that information and intelligence makes law enforcement more useful. That is our value.

291.

Mr McNamee: You said that NCIS believes that the powers given by this Bill are essential in the recovery of the proceeds of crime from people who have so far been, shall we say, untouchable. I would be interested in your comments on some of the information we have been given, and your views on the extent of investigative interest in a number of individuals in the North of Ireland in comparison with England and Wales. I would also be interested in your views on a comparison of the assets involved.

292.

If the Bill is essential, then it is essential that it can operate. The Northern Ireland Human Rights Commission has raised several issues in relation to the Bill and article 6 of the European Convention on Human Rights (ECHR). Some people view the Human Rights Commission as a body that worries too much about the rights of criminals, but it has a statutory role in ensuring that our legislation is compliant with European legislation and a duty to advise people if it thinks that it may not be compliant. If it is not and the Bill is introduced, implemented and subsequently and successfully challenged in the European Court of Human Rights, then of course the whole purpose of the Bill would be undermined. It is essential that the Bill complies with human rights legislation. I am not trying to tell you what you already know, but I want to pre-empt what I want to ask you.

293.

Some of the concerns raised in terms of compliance with the human rights legislation were about the limitations on recovery of assets. If a person is deemed to have a criminal lifestyle, do you take everything that they have ever possessed? How do you establish what part of their property is the result of the proceeds of crime and what part has been legitimately obtained?

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Another issue is the burden of proof - moving the standard of proof from "beyond reasonable doubt" to a "balance of probability". The Human Rights Commission felt that it should be stronger than a simple balance of probability, although in terms of civil recovery, "beyond reasonable doubt" might be setting too high a standard in terms of recovering the proceeds of crime. The Bill is not complete - at present, it does not cover that particular point - but there was a concern that the burden of proof issue could also affect its compliance with the human rights legislation.

295.

My third point concerns the six-year retrospective nature of the Bill. It will affect any property that a person has obtained up to six years before the date of the Bill's introduction. It was felt that the extent of that period might also have some implications in terms of article 6 of the ECHR.

296.

Mr Harvey: There are a host of issues there. I was not primarily involved in the original work, either before or after the Performance and Innovation Unit report that generated this in Westminster. Of course, the ECHR has been at the forefront. This has all been referred to the appropriate lawyers throughout, to ensure that it is ECHR-compliant from the start.

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As a pragmatist, I feel that the first case of any great size that is brought by CARA will certainly be challenged. The type of people that we will be attacking through this will be able to spend a great deal of money on defending themselves. We must anticipate that, which is why it is going to take a certain amount of time before large numbers of criminals are brought to book in this way. It will start off slowly and then develop incrementally, which is why there is only relatively small funding to start with for what will be a relatively small number of cases. It will then build up over time. I do not anticipate thousands of criminals being brought before the High Court straight away.

298.

We remain convinced that it is compliant with ECHR. We believe that it is proportionate, accurate and necessary to bring these people to book. This has not just been driven by law enforcement asking for an easy solution, it has been driven by the courts, it has gone to the Lord Chancellor's Department, and everybody at Westminster level has examined this and agreed that these principles can be complied with.

299.

It should not just be seen as a money-gathering exercise. I understand that we are focusing on that, but the Bill brings in many other things. It need not just be the drugs or terrorist organisations that we can get the assets from, or taking money from people who are literally moving large sums around. We are now seeking certain other changes in the area of cash seized, not at borders, but where it is being moved around the country, because we can literally see large volumes of cash being passed around. We need a panoply of weapons if we are to attack the financing of organised crime, as opposed to individual assets.

300.

Mr McNamee: What is the situation in England and Wales?

301.

Mr Harvey: Difficult as it is to believe, after three or four years we are still trying to compile figures on how many villains in the United Kingdom are worthy of our attention. My starting point was to establish how many of our targets were worth £1 million. I can assure you that every one of them is worth at least that. We look at the house they live in and at the businesses they own; we also consider other factors, but the size of their business is what first attracts our attention.

302.

A minor player would not attract the attention of the National Criminal Intelligence Service. Of course, a small-time drugs dealer, who is for whatever reason beyond the reach of local law enforcers, will have a much greater impact on a small rural community than he would in a big city, and we must take that into account. We want to improve people's lives by taking such criminals out of the picture. I cite the example of a drugs dealer, but none of the criminals we deal with restrict their trade to drugs.

303.

Mr Ervine: Are there international implications? Can a wealthy criminal move his interests - not necessarily his criminal interests - beyond your jurisdiction?

304.

Mr Harvey: They can most certainly move their interests and money out of the United Kingdom, and I consider that to be an important part of disrupting their activities. A part of the United Kingdom that is not diligent in applying this legislation will find itself prey to organised crime. That is why we stress the importance of consistency of approach. Countries that have introduced such legislation have found that organised crime has been quick to move its money - even the threat of it is enough to make criminals move their money.

305.

One of my responsibilities is the financial intelligence unit, which deals with suspicious disclosures. Through that, we track the movement of moneys to countries that have signed a protocol or agreement. Of course, that must be converted into evidence, but it means that the world is beginning to realise the importance of uniting to fight the movement of criminal money. To date, 58 countries have signed an agreement, and we hope that that will increase by another 16 in the next two years.

306.

No countries want criminal money; it does them no good. Of course criminals will move their money around, but that does not mean that it will be beyond our remit. We might find it extremely difficult to recover that money, but we can tell a judge that it is relevant that so-and-so owns land in a foreign country and leave it to the judge's discretion to decide on how it was paid for.

307.

Mr Ervine: How independent can a politically appointed director be? Can he be free from interference from, say, the Home Secretary?

308.

Mr Harvey: Actually, I am not concerned by that particular issue. That might be naivety on my part, but I do not believe that it is. Obviously, until the director and others are actually appointed, we can not define the detail precisely. We certainly see NCIS as a clearing house for the role, for many reasons.

309.

First of all, we have to know if this person is a criminal worthy of attention. The last thing we want, as I said earlier, is police officers getting some sort of cheap revenge on somebody who they happen to dislike. That is a possibility. Furthermore, we want to hit certain standards, because there are only going to be a limited number of cases. We will be doing that. Also, what we will need to ask is whether, by impacting upon this particular person, we will affect another inquiry -

310.

Mr Ervine: What worries me more - illegal though it may well be, and we all should be annoyed, hurt and frustrated that there is illegality in our society - is that I can picture one of the major designer companies or one of the major label companies getting into the ear of the Home Secretary, who then gets into the ear of the director, who then directs his resources, and the next thing is that we see on the news that all this counterfeit clothing has been lifted. While that is perfectly legitimate work for the service to do, it is the question of political direction that I worry about. You absent yourself from needing to think about that because you are not a politician, but you are a citizen and you should wonder whether or not it is the right way to direct a service.

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Mr Harvey: Rather than saying that we have not though about it, we should stress the independence of NCIS. We will be determining that these people are worthy targets. If we do not agree that they are worthy targets, then we do not believe that CARA will be taking them on. In the general outline, that has been agreed.

312.

Furthermore, we do not report direct to the Home Secretary. We report to a separate service authority, similar to the Police Authority, which has public meetings and which is accountable. Obviously there are parts of that that are not public, but it has local politicians, professional businessmen and the like, and they will ensure that we are complying with what they think is appropriate. We have to report to them on our activities. We are the only independent intelligence agency, and we are headed by a chief constable. I think that the autonomy of chief constables is fairly well known in the United Kingdom.

313.

Mr Ervine: Do you operate informants?

314.

Mr Harvey: Yes.

315.

Mr Ervine: Do you, then, closely follow the Regulation of Investigatory Powers Act 2000?

316.

Mr Harvey: We follow it exactly.

317.

Mr Ervine: Therefore, there must be commi- ssioners?

318.

Mr Harvey: Commissioners inspect our work regularly. There are similar restrictions on every other part of our activity, for example, the Data Protection Act 1998.

319.

Mr Ervine: In that case, the only thing that is wrong is that you need to put the job out for advertisement. It should not be given out under political patronage. Then you would be doing almost everything right.

320.

Mr Harvey: Personally, I think that the type of person that is being looked at is far more likely to have a good business background than a political background. I do not know who is applying.

321.

Mr Ervine: To be fair, the fact that they achieve political patronage does not necessarily preclude them from being capable for the job, but it does put a bad taste in politicians' mouths.

322.

Mr Harvey: I understand the point. I should have made a better one.

323.

The Chairperson: We have discussed civil recovery and confiscation and so forth, but there are other aspects to the draft Bill. In general terms, what aspects of the Bill do you particularly welcome, and what weaknesses do you see in it?

324.

Mr Harvey: The greatest step forward is, of course, stretching it beyond drugs and terrorism. I cannot stress enough that these are not single-minded people. The targets that we will be looking at are not just people who bring over a bag of drugs from the continent. They are involved in every type of thing, and you cannot always guarantee that the operation is going to catch them when they have that particular substance in their possession. They may well, for any one of a number of reasons, have shifted it. That is extremely valuable. The seizure of cash, et cetera, will be another valuable aspect.

325.

The third element - quite frankly, we might as well be pragmatic - is that this is going to generate a great deal of money, in our view. It may take a couple of years to kick in. Not only will that fund the agency to improve and increase its capacity, but under the recovered assets fund - and that is work that is going on as we talk about it - there will be more money directly available for law enforcement to bid against for more operations. The current view is that 50% of the proceeds will be available for that purpose, as opposed to just going to the Treasury, which is the traditional route, as you are aware, for all these sorts of funding.

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I have many operations in mind that I could pursue if resources were unlimited. I am not saying that resources will be unlimited, but the Bill will boost law enforcement in that it directs activities against people who deserve more attention.

327.

The Chairperson: Do you see any weaknesses in the Bill?

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Mr Harvey: We are addressing one or two weaknesses. If the weaknesses of the Bill are not addressed, then other elements of it can be reviewed. We will be pulling those elements apart in fine detail. Some have already been addressed - for example, all the members of my economic crime unit will have some police powers. Previously, my financial analyst would not have been able to look at certain work because certain disclosures can only be made to a police officer.

329.

There are elements of change that could make us more powerful. We are now asking for the ability to seize large amounts of cash that has been carried around the country. The seizure of cash has previously been done at borders by customs, and we seek to improve that. When we are following the money in order to seize it, we can take another route. When we talk about recovered assets, that route is not necessarily against people in general - it is meant predominately to attack the drugs trade. The people that we work on are so cash-rich that real action against them is required. They can afford the best defences, and that is why they have always been so difficult to intercept.

330.

The Chairperson: Does the Criminal Assets Bureau in the Republic have any measure or operational capacity that would be helpful for CARA?

331.

Mr Harvey: We have looked at the Criminal Assets Bureau and have seen its powers and how those are effected - it seems to be working for the Republic. Our measure will work better for us. The Bill is good and innovative. It is worth reflecting that 10 or 12 years ago the United Kingdom was the first to compel the reporting of suspicious financial transactions, whereby banks, financial institutions and others were legally required to tell one of my units about suspicious money. At the time, that was considered revolutionary and pushing at the limits; now just about every country in the world has passed similar legislation.

332.

Countries that wish to join the European Union are required to have corresponding legislation. People can see the value of that legislation. The United Kingdom is at the forefront of "attacking the money", and this is another step along those lines. Being the first will always be testing, and others will look at us, particularly in the debate on human rights. If you are in the lead, you must expect some of your paths to be less smooth than the paths of those who are following.

333.

The Chairperson: Thank you, Mr Harvey.

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