Memorandum submitted by Northern Ireland Human Rights Commission (CJ&I 401)
1. The Northern Ireland Human Rights Commission (the Commission) is a statutory body created by the Northern Ireland Act 1998. It has a range of functions including reviewing the adequacy and effectiveness of Northern Ireland law and practice relating to the protection of human rights, advising on legislative and other measures which ought to be taken to protect human rights, advising on whether a Bill is compatible with human rights and promoting understanding and awareness of the importance of human rights in Northern Ireland. In all of that work the Commission bases its positions on the full range of internationally accepted human rights standards, including the European Convention on Human Rights (ECHR), other treaty obligations in the Council of Europe and United Nations systems, and the non-binding 'soft law' standards developed by the human rights bodies.
2. The following briefing is provided for the continuing consideration of the Bill in the Committee and addresses only some aspects of a large and complex Bill touching on a wide range of issues including youth justice, sentencing, the introduction of new anti-social behaviour measures, provisions setting up the office of the Commissioner for Offender Management and Prisons, immigration provisions and new offences.
3. This briefing draws attention to what the Commission sees at this stage as proposals of particular concern, taking account of amendments introduced in the Committee so far. The Commission has no comments in relation to the Northern Ireland-relevant provisions on youth rehabilitation orders (clause 3), youth default orders (c.23), annual reports on the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c.63), pornography (cc.64-67 & 69) and nuisance on health service premises (c.107).
Criminal justice proposals
4. In October 2006, the Commission responded to the consultation by the Northern Ireland Office on quashing convictions (as part of the UK-wide consultation on the issue) which proposed that the Court of Appeal (Criminal Division) should uphold a conviction, even after a serious procedural irregularity (such as obtaining evidence unlawfully or bringing the accused person before the court in the UK in breach of extradition laws), if the judges themselves were satisfied of the defendant's guilt.
5. The Commission stressed at the time that any proposals for limiting the independence of the Court to quash convictions would impact fundamentally on the value given in the criminal justice system to considerations of procedural fairness. We also made it clear that the proposed changes would have particular implications for the UK's obligations under Article 6(1) of the European Convention on Human Rights, and similar provisions contained in Article 14 of the International Covenant on Civil and Political Rights. We also stated that the proposals may have implications for Article 3 ECHR and the United Nations Convention against Torture.
6. In terms of the values underpinning the legal traditions in UK jurisdictions, any measure that tends to undermine the requirement for procedural fairness in the trial process also threatens the presumption of innocence, and increases the likelihood of miscarriages of justice.
7. The Bill, as introduced in Parliament, excluded Northern Ireland from the scope of changes to the appeals process and we welcomed this exclusion. We are therefore concerned at the introduction of an amendment moving new clauses to extend to Northern Ireland some of the proposed changes, including those relating to unsafe convictions, and permitting the Court to disregard developments in the law since the conviction.
Compensation for miscarriages of justice
8. The Commission has profound concerns about the provisions included in clause 62 (which applies to Northern Ireland) altering the scheme for the award of compensation for miscarriages of justice. It is proposed that a limit of two years be imposed for making applications for compensation, with an upper limit on the amount of compensation that may be awarded. It is proposed to restrict the compensation that may be awarded for loss of earnings to (on 2006 figures) something in the region of £30,000 for every year of wrongful imprisonment, regardless of the actual or potential earning power of the person concerned, and to enable the Assessor to make deductions from the level of compensation in the light of any conduct that - in the assessor's opinion - could have contributed, even indirectly, to the wrongful conviction, and in the light of any previous conviction, whether or not related to the one obtained wrongfully.
9. Wrongful convictions carry profound consequences for those who find themselves wrongly accused and have to endure often lengthy trials and detention, sometimes for many years. Miscarriage of justice not only affects those directly involved but their families, friends, wider social networks, employment, etc. In those circumstances, the State should take full responsibility for any failure in its criminal justice system and fully compensate the victim of such mistakes. Financial compensation never reverses all the consequences for the wrongly convicted, but it should go as far as it can to reinstate the victim's position and make amends for the grave harm done.
10. No two cases are ever the same and therefore the assessment of compensation should rightly reflect the entirety of the damage caused in a specific case. It is not appropriate that the level of compensation be limited by statute, nor that amounts be deducted from compensation due to "any conduct" which in an assessor's opinion "directly or indirectly caused, or contributed to, the conviction concerned". Neither the Bill, nor the Explanatory Notes, give any examples of such behaviour, leaving the assessment to a decision in an individual case. Might this mean, for instance, that a person could see their compensation cut because they didn't fully understand and participate properly in the trial proceedings, perhaps due to learning difficulties? How far does the definition of "any conduct" in this clause go? How will the "indirect contribution" to conviction be assessed? Does "any conduct" not invite the assessor to make a subjective assessment of the character of the individual, and in effect to penalise them once again for anything that, without establishing their guilt of the offence, might have disposed the trial judge or jury unfavourably towards them? Is it possible that non-criminal conduct, such as having particular political opinions, engaging in lawful protests, exercising the right to silence, or merely belonging to a particular social group, could have indirectly contributed to a wrongful conviction by distracting from the errors and inadequacies in the prosecution's case? If that were so, would it not justify aggravated rather than reduced compensation?
11. The clause maintains the provision from the 1988 Act that compensation can be cut, resulting in some cases in payment of only a nominal amount, when the person has been convicted of "any other offence". The level of compensation for a particular wrongful conviction should not be dependent on whether someone has or does not have a conviction for an entirely separate matter. Only the circumstances of a particular case resulting in the miscarriage of justice in question should be considered. To take prior convictions into account when assessing the amount of compensation is to admit that a miscarriage of justice has somehow not as important when it concerns persons previously in conflict with the law as when it concern those who never came into conflict with it. The right to liberty is a fundamental right of all persons, and unjust imprisonment has substantially the same effect on those with as on those without a previous conviction.
12. In terms of what is absent from this clause, it is regrettable that the opportunity is not taken to remove the scope for deductions relating to notional savings on living costs. This is currently calculated by making a deduction supposedly corresponding to the living costs that the wrongly imprisoned person would have incurred had they been at liberty, but it is widely perceived as a charge for "board and lodging" costs relating to the period of wrongful imprisonment. It cannot be right that anyone wrongly detained should either be required to contribute to the costs incurred by the State in doing that injustice to him or her, or required to forego part of their just compensation on the basis that their imprisonment prevented them exercising freedom to spend. The recent judgment in the House of Lords in the case of the Hickey brothers upheld a deduction of 25 per cent of the earnings-related element of compensation, but clause 62 could have prevented future such deductions to address the concerns eloquently put in Lord Rodger's dissenting opinion:
...in the appellants' situation the wrong was not over and done with when they were being maintained at public expense and the supposed savings accrued to them. On the contrary, their enforced but unjustified maintenance in prison at public expense for years on end is the very worst part of the injury which has been done to them and for which they are entitled to compensation. The actual infliction of the continuing wrong and the supposed saving are inextricably linked, just as they would be in the case of a prolonged kidnapping. That simple fact takes the appellants' case beyond the reach of the kinds of policy considerations which favour offsetting the injured person's savings against loss of earnings in the situations envisaged by Parliament and the courts. To put it no more strongly, justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.
Commissioner for Offender Management and Prisons
13. The Commission welcomes the inclusion in the Bill of provisions relating to the creation of the office of Commissioner for Offender Management and Prisons. It is the Commission's understanding that amendments are currently being drafted that would give equivalent statutory powers to the Prisoner Ombudsman in Northern Ireland. While the Commission is disappointed that we were not consulted upon the amendments, we welcome the placing of that office on a statutory footing and support the long-awaited change to law in this matter.
14. For the effective protection of human rights both the Commissioner, and the Prisoner Ombudsman in Northern Ireland, should be able to act on their own motion. The Commissioner should be provided with all necessary resources to perform her/his functions in the protection of persons in the custody of the State. While we understand that resources will be channelled through sponsor departments (the Ministry of Justice in England and Wales, and the Northern Ireland Office), the Commission submits that to protect the independence of the complaints system, both office holders should be answerable directly to Parliament and not their respective sponsor departments.
15. We particularly welcome the remit that the Commissioner for Offender Management and Prisons will have in Northern Ireland to investigate complaints relating to immigration custody, including treatment of immigration detainees in transport and escort. We read clause 37(3)(e) as extending to the treatment of immigration detainees by private contractors fulfilling functions either in relation to immigration detention or in transporting and escorting immigration detainees. Considering the increasing engagement of private security firms in performance of functions relating to custody and transport of immigration detainees, it is important to bring such contractors within the remit of the Commissioner.
16. The Bill proposes (in clause 50(2)) to give the Secretary of State the power to specify by order descriptions of immigration detention premises which are to be excepted premises for the purposes of Part 4 of the Bill or for the purposes of a specified provision of this Part. The Explanatory Notes to the Bill are silent on what kind of premises might be specified in this way, or for what purpose; there is no obvious reason to limit the protection of persons subject to immigration detention depending on the premises in which they are being held.
Immigration law proposals
Special immigration status
17. The Commission has concerns regarding the introduction in the Bill of special immigration status (clauses 115 to 122). This status will follow a designation by the Secretary of State of a non-UK citizen who would be eligible for removal from the UK but cannot be deported because to do so would contravene the Human Rights Act 1998. The designated person, though not in the UK in breach of the immigration laws will be ineligible for a grant of leave to remain and will be treated as a person who is subject to immigration control; the person is not to be treated as an asylum seeker or a former asylum seeker. Conditions that can be imposed by the Secretary of State or by an immigration officer "may relate to" residence, employment or occupation or reporting to the police, the immigration officer or the Secretary of State. Nothing more concrete is included in the Bill to define the restrictions, giving the Secretary of State or immigration officers considerable discretion over the individual.
18. The kind of offences that could lead to imposition of the special status range from serious ones to relatively minor, such as criminal damage or theft. The impact on offenders who are not UK nationals would be significantly greater than on those who commit similar offences but are UK nationals.
19. The person subject to special immigration status will not be able to refute the presumption that he/she poses a danger to the public. This might suggest that the Secretary of State will not be required to make any real assessment prior to certification.
20. The measure, if introduced, will affect not only those who have been convicted of crimes; it may also be used in relation to any member of their families, including children. This clearly conflicts with the UK's human rights obligations, particularly in relation to punishment of children for the actions of their parents. The state has accepted obligations under the UN Convention on the Rights of the Child and particularly its Article 2(2) which obliges the UK to "take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."
21. The Explanatory Notes to the Bill state that: "Designated persons are persons who, because of their conduct, the Secretary of State is concerned to remove from the United Kingdom". Extension of that status to those whose conduct is not directly in question - such as the designated person's spouse or child - constitutes punishment of individuals for the actions of others, in conflict with basic human rights precepts.
22. In relation to terrorism-related offences, law enforcement agencies may soon have to deal with three different schemes of introducing restrictions - control orders, special immigration status and the post-release restrictions envisaged by the latest counter-terrorism proposals. Additionally, clause 16 of the current UK Borders Bill would permit granting of leave to enter or remain subject to the imposition of reporting or residence conditions. These could be used in relation to persons who commit serious criminal offences. It is possible that persons may find themselves subject to a variety of different conditions, forming parts of different restriction schemes. This could lead to restrictions of such magnitude that they become punitive rather than preventative in nature, raising questions as to their compatibility with the requirements of Articles 6 and 7 of the ECHR.
23. For the State's obligations under Article 8 of the ECHR to be properly observed, any restrictions on private or family life have to be lawful, proportionate and necessary. It is questionable whether the restrictions envisaged but not fully defined by the Bill could ensure the level of clarity and predictability of the law needed to fulfil the requirement of "lawful" restriction under international human rights law.
24. Lastly, the provisions on special immigration status are unsatisfactory both as to the decision-making mechanism and in relation to oversight. The power to designate an individual, and decide upon conditions, lies solely with the Secretary of State (or an immigration officer acting on his or her behalf). The Bill does not contain a requirement for the person to be given reasons for their designation, nor for the particular conditions imposed. The decision is only subject to judicial review, with no provision for an appeals procedure. This is inadequate in the context of a measure that confers wide discretionary powers on the Executive, may lead to serious restrictions on the liberty of individuals and their families, and creates a criminal offence punishable by imprisonment.
 Northern Ireland Act 1998, s.69(1).
 Ibid., s.69(3).
 Ibid., s.69(4).
 Ibid., s.69(6).
 See: Notices of Amendments given on Wednesday 14 November 2007, line 210 and after.
 Explanatory Notes, at para.15, p.5.
 O'Brien and others (FC) (Appellants) v Independent Assessor (Respondent),  UKHL 10.
 Providing that the new counter-terrorism proposals for post-release restrictions will be introduced into law (see: Possible measures for inclusion in a future counter terrorism Bill, Home Office, 25 July 2007, at paras 42 to 48).
 The Revised Regulatory Assessment for the UK Borders Bill states: "The proposed use is for people who have committed serious crimes in the UK but whose removal would breach international obligations" (http://www.ind.homeoffice.gov.uk/6353/6356/10639/ukbordersbillria.pdf).