Draft Life Sentences (Northern Ireland) Order 2001

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Simon Hughes: I want to follow up the question from the hon. Member for North Down. The Minister announced that the period of office will be five years, and that goes beyond what is stated in the schedule to the order, which does not specify the term. Will he explain to the Committee why that could not be put in the order? That may be Government policy now, but, in theory, it could change.

An obvious example of a controversial matter that always arises with such issues is the current ending of the term of office of Her Majesty's chief inspector of prisons in England and Wales. If people are not re-appointed when they are thought to have done a good and independent job, there is always a suspicion that it is because the Government are not comfortable with that. What assurance is there that replacement of the first batch of commissioners will not ignore people's views as to whether they should be re-appointed? Nothing seems to require re-evaluation or to allow people to express an opinion on whether someone should continue in office. That is entirely in the Government's gift, and after five years they could replace all or some commissioners. If there is to be confidence in the system, people must be seen to be independent and to stand up to the authorities without fearing for their jobs.

Mr. Browne: The five-year period conforms with the Lord Chancellor's guidance on bodies such as the commission. It is intended that there will be a transitional period so that cases that are expected to come before the existing procedure can come before a transitional procedure before the commissioners are appointed. It is anticipated that the sort of open competition that will be necessary for commissioners in the longer term will not be possible when those transitional commissioners are put in place. The order requires flexibility to allow the transition from the status quo to the process in the order for the longer term.

On the hon. Gentleman's second point, it is intended that the process of selection and appointment of commissioners set out in the order, with its emphasis on professional ability and independence, will provide the necessary robustness of test for commissioners. The Government do not intend to lay down restrictions that could cause problems later in the succession of members and the examination and review of the performance of previous members. It is hoped that the process that has been put in place under the Lord Chancellor's guidance will generate the appropriate commissioners in the first instance and will be robust enough to continue that process throughout the life of the board of commissioners.

I am advised that the Lord Chancellor's guidance allows for five years and also for automatic renewal. That issue will be followed up in due course. The order must be flexible to allow for the transitional period with transitional commissioners. That will foster an open process and competition in the long term.

Article 4 provides the Secretary of State with the power to make certain information available only to a commissioner and for it to be withheld from the prisoner in certain circumstances. The prisoner can be excluded from the proceedings of his case and a legal representative appointed on his behalf. That would occur when confidential information is being deployed. Those powers are made more explicit in schedule 2 of the draft order and in rule 15 of the draft life sentence review commissioners' rules. As article 4 introduces the schedule, it is appropriate to deal with the powers now.

During consultation, the provisions were alleged to be contrary to human rights. The Government view the provisions as essential for the ability to review cases for release in a complete way. They allow for the supply of information to commissioners that might not otherwise be provided because of a potential danger to the provider. We do not accept that they breach human rights standards: they are designed to cater for the human rights of the potential witness, and for the rights of society as a whole. I envisage that they will be used only rarely, and, on such occasions, the legislation provides for a special advocate to be appointed to represent the prisoner's interests.

Hon. Members may be aware that the provisions of the Northern Ireland (Sentences) Act 1998 are currently subject to judicial review in the case of Mr. Johnny Adair. Similar provisions to those under discussion are in that Act and they have been applied on limited occasions. Given that that case is ongoing, and is sub judice, it would be inappropriate for me to go into further detail. The Government have already made their position clear. The provisions are designed to cater for the human rights of the victims and witnesses, and for the rights of society. Such essential powers should be retained.

Article 5 provides for the setting of the tariff by the sentencing judge, and it was welcomed by all during consultation. Again, that is a proposal in accordance with the recommendations of the criminal justice review, and is a fundamental building block in the construction of an independent review process governing life sentences in Northern Ireland. The article also provides the court with the power to order that no tariff be set—that is sometimes known as the whole life tariff. Representations during consultation suggested that, as a sentence, the whole life tariff should be removed, particularly if it were to be imposed on a juvenile, and that the power of the Secretary of State to determine when such cases might be referred to the commissioners is too general.

The Government's view is that when introducing the current arrangements for life sentences, the court should have a full sentencing range available. There may be occasions when the offence or series of offences in question are so heinous that a punishment period cannot be set. We would expect that the use of such a provision would be extremely rare, but we do not think that we should tie the court's hands in decisions that it can take in this area.

To cater for any occasion when a whole life tariff may be set, and to provide for the possibility of review, we have included a provision for the Secretary of State to refer such cases to the life sentence review commissioners for their consideration. Referral will be mandatory in a juvenile case—we feel that the youth of the individual and future maturation in such cases must be allowed for—and discretionary in the case of adults. The Secretary of State will decide on the appropriate point of referral, and it will be dependent on the circumstances of the case. In both adult and juvenile cases, once referred, the Secretary of State has a duty to comply if the commissioners direct release.

Article 6 provides the arrangement for the release of life prisoners. The core provisions are that, once the tariff period of the life sentence has been served, the prisoner may require the Secretary of State to refer his case to the commissioners. If, on consideration of the prisoner's case, the commissioners direct release, the Secretary of State must release the prisoner on licence. In considering the release, the commissioners must be satisfied that the confinement is no longer necessary for the protection of the public. Again, the key principle governing the commissioners' decisions is made clear in the legislation: they need to protect the public from serious harm. The punishment part of the life sentence must be complete and the decision on release made on the grounds of risk to the public.

Various representations were made during consultation: first, that the standard of proof required on assessing risk and deciding on release should be made explicit; secondly, that the two-year knock-back period, if the prisoner is refused release, is too long; thirdly, that the process of referring cases to the commissioners should be made explicit; and fourthly, that the legislation should require the Secretary of State to refer cases to the commissioners at fixed points before the court-set tariff expires.

On standards of proof, case law already exists on the standards for such decisions, and that will guide the commissioners. They will have to be satisfied, on the balance of probabilities, that a prisoner's release will not lead to any risk of serious harm being caused to the public. The standard will be applied at the upper end of its parameters; that is, the commissioners must conclude that it is highly improbable that the release of the prisoner will put the public at risk of serious harm.

The comments made on the length of the two-year knock-back appear to be misconceived. Two years is a maximum period for review, not a minimum, as some seem to think. It is a fall-back guarantee that tells the prisoner that if he has not been re-referred within two years, he has a right to a hearing.

We accept that there should be arrangements for the early referral of cases to the commissioners, and that referral could occur even before the court-set tariff expires. Subject to the tariff set in individual cases, we intend to refer cases to the commissioners three years before the tariff expires. That will allow the commissioners to review progress and to make recommendations as requested. The formal release review will commence six months before the expiry of the tariff, allowing full representations to be made. The intention is that the process should not delay review at the point at which the tariff is complete.

The intention of our policy is, therefore, for a three-year pre-tariff review, a six-month lead-in to the tariff review and a maximum of two years for the post-tariff review period. We do not see the need to provide for pre-tariff review points in the legislation. Individual cases might require individualised approaches, and we do not want cases to be bound by a statutory straitjacket. There must be some flexibility.

Article 7 allows the Secretary of State to release life sentence prisoners permanently on compassionate grounds in exceptional circumstances. In taking such decisions, the Secretary of State will be required to consult the commissioners unless it is impracticable. Representations were made that rules should set out appropriate procedures for the Secretary of State to consult the commissioners when considering release on compassionate grounds. There were contradicting representations: that the Secretary of State should consult in all cases, not only when practicable; and that the Secretary of State should have sole responsibility and should not consult the commissioners in any case.

We do not think that statutory rules are required for such circumstances. The provision permits release essentially when a prisoner is terminally ill or in other tragic circumstances. Decisions might have to be taken at speed. The process is not one of application, referral and legal representation, which might require statutory rules. Despite conflicting views on the consultation or non-consultation of the commissioners, we think that such consultation should take place when practicable.

Article 8 provides for licences to be imposed on release. Unless the licence is revoked and the prisoner recalled to prison, licences remain in force for life. Licences might require post-release supervision by a probation officer. During consultation, the following comments were made: that life licensing until death is unduly harsh; that licence requirements should diminish as time passes; that the potential for automatic lapse after a specified number of years should be included; and that the commissioners should be allowed to review licences at regular periods, and have the power to annul, if there are no breaches of the licence or its conditions.

Licences will be Secretary of State's licences, and it will be the responsibility of Ministers to monitor and act on non-compliance, subject to the advice of the police, probation service or appropriate agencies. That is not a role for a group of independent commissioners. Statutory agencies will therefore remain accountable to Ministers, not to the commissioners.

On the possible annulment of licences, it is worth stressing that licence conditions can be varied or cancelled. They do not have to exist for the rest of the released prisoner's life. One can envisage circumstances in which time passes and the prisoner settles to a new life so licensing conditions may no longer be relevant. However, the licence itself will exist for life. The sentence to life imprisonment and release on life licence replaced the death penalty as the punishment in murder cases. When the court imposes a life sentence, it is intended to be for life.

Article 9 deals with the recall of life sentence prisoners and provides two means of licence revocation, both of which fall to the Secretary of State. The first and principle means will be on the recommendation of the commissioners. It would be our intention in such circumstances that any routine advice from a supervising officer would be referred to the commissioners for their consideration. The second method of recall would typically be used in emergency circumstances in which more immediate decisions needed to be taken and a panel of commissioners might not be available. That would again be subject to the advice of the police, the probation service or appropriate agencies.

In all recall cases, prisoners will be advised of the reasons for their revocation and told that they can make representations. All recalls will be referred to the commissioners, and if they recommend release it will be the duty of the Secretary of State to comply. Representations were received during consultation that guidance or directions should be issued on the standard of proof required for recall, and that there should be consistency in standards between release and recall decisions because the standard required to permit release should be the same when considering the recall of a released prisoner.

We agree that standards should be the same because the protection of the public from serious harm is at the core of the order. However, for recall cases licensing conditions are an additional factor. If consistent failure to comply leaves supervising officers where they cannot fully satisfy themselves about risk, and if there is concern about serious harm, recall may be required. Case law already exists as to the standard for the recall of prisoners. Many comments were made about the recall process. Some felt that recall decisions should be left entirely to the commissioners; others thought the reverse—that it should be exclusively a Secretary of State's power. Again, licences will be Secretaries of State licences and it will be a Minister's responsibility to monitor and act upon non-compliance, subject to the advice of the police, the probation service or appropriate agencies.

Article 10 provides arrangements to apply the order to transferred or repatriated prisoners from other jurisdictions. In essence, the Secretary of State will consult the Lord Chief Justice and certify the prisoner's eligibility and the point at which commissioners would consider him for release—in other words, his individual tariff. Representations were made that the court should set the tariff for transferred prisoners. Such prisoners will already have been convicted in a court in the sending jurisdiction. They will already have tariffs of some sort and will simply need to be mapped into Northern Ireland law. The sending jurisdiction will require and receive an indication of sentence length prior to the transfer decision. The Secretary of State can make that direction, and to do so he will consult the Lord Chief Justice about an appropriate tariff. Case papers will be made available to the court to assist in its deliberations.

Repatriation cases may be slightly different in that they may not have tariffs as we understand them. However, the sending jurisdiction will again require and receive an indication of sentence length. Consultation with the Lord Chief Justice will also be required in law before the order can apply.

Article 11 provides arrangements—

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Prepared 9 July 2001