Official Report: Minutes of Evidence

Committee for Justice , meeting on Wednesday, 12 November 2014

Members present for all or part of the proceedings:

Mr Paul Givan (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Stewart Dickson
Mr S Douglas
Mr Paul Frew
Mr Seán Lynch
Mr Patsy McGlone
Mr A Maginness
Mr Edwin Poots


Ms Julia Kenny, NIACRO
Ms Olwen Lyner, NIACRO
Ms Anne Reid, NIACRO

Justice Bill: NIACRO

The Chairperson (Mr Givan): I welcome Olwen Lyner, chief executive; Anne Reid, Jobtrack senior practitioner; and Julia Kenny, policy and research coordinator; all from NIACRO to the meeting.

You are all very welcome. This session will be recorded by Hansard and published in due course. It will follow the same format as the last one. Please take us through briefly the general issues on which you have made a submission to the Committee. Then, I will go through each section in questions afterwards.

Ms Olwen Lyner (NIACRO): Thank you very much for the opportunity to be here today. I am the chief executive of NIACRO.

Anne Reid is a senior practitioner on our employability programme Jobtrack. She is responsible for promoting fair recruitment for people with criminal records. Over the past period that we have been looking at that, there has been a 260-fold increase in the number of enquiries that we deal with year on year. So, Anne has some experience.

Julia Kenny has responsibility for our policy and research work. Hopefully, some of the questions that we respond to will draw on the research that we have undertaken or some that we are currently undertaking.

This session obviously supplements our written evidence and gives you the opportunity to ask us questions. We will look forward to that.

I will just take a moment to brief you on the work of the organisation and outline a couple of the points that are key to our concerns at the moment. We have three key concerns. Despite recent changes to the current criminal record regime, there are still many instances that prevent people with a record being reintegrated back into society and the workplace. So, a mechanism that allows people to apply for old or minor convictions to be removed from their criminal record is needed to promote better resettlement and therefore reduce reoffending rates. This is in line, particularly, as you have heard from others, with recommendation 21 of the youth justice review, which is still yet to be implemented.

Our second concern comes from the fact that we need to move to a situation where we formally end the option of imprisoning people for the non-payment of a fine. We know that we have a stay in that process at the moment. We need to formally end that process.

Finally, while we recognise that it may be beyond the scope of the Bill as it currently stands, we want to draw your attention to the fact that crime has both direct and indirect victims. From our experience, the families and children of people who offend or are accused of offending also suffer as a consequence of crime.

NIACRO is a voluntary organisation that has been working for more than 40 years to reduce crime and its impact on people and communities. We work with people in prison and their families, adults in the community, children and young people. The nature of our day-to-day work means that we provide services to and are aware of the issues affecting people who have offended, young people and adults who may be at risk of offending, victims of crime or antisocial behaviour and their families.

Over the years, we have gathered most of our evidence from listening to the people whom we work with. We understand the lasting damage of a criminal record. This, alongside the importance of helping people to avoid entering the criminal justice system in the first place, is something that we raised with you in our written evidence. We know that being able to access education, employment and training generally greatly reduces the risk of reoffending and is a key factor in helping people to stop offending altogether. However, too often, a criminal record or even unofficial non-conviction information that is held by the police acts as a barrier to employment or training and therefore undermines efforts for effective resettlement. In effect, the criminal justice system can, at times, be seen to be working against people who are attempting to integrate back into society and stop offending behaviour. We strongly believe that the way in which the system works, the way in which people in the media think and the way in which the law is implemented can amount to barriers to accessing sustainable education, employment and training. These barriers need to be minimised for us to see a reduction in reoffending, which will, in turn, create a safer society.

We have concerns that the current criminal record regime does not protect the most vulnerable in society and can actually prevent effective rehabilitation and resettlement while the existing structures can be misused. Our experience is that some employers use criminal record information, including very old and minor convictions, as a means to deny people opportunities without penalty. While Access NI does have a code of practice, our evidence suggests that this is not always being effectively implemented and that registered bodies are not regularly being held to account. We believe that this needs to be addressed urgently so that employers cannot use the disclosure of convictions to weed out applicants at the shortlisting stage. Legislation for this fair recruitment practice would help to reduce reoffending and make communities safer.

While the new filtering arrangements for criminal records that were introduced earlier this year mean that some convictions are now not disclosed to employers after a certain time, our experience is that they still do not go far enough. For example, if somebody comes to the attention of the police for a traffic offence and then there is evidence of an invalid licence because they have not changed their name — for example, a woman who got married — or their address, this becomes two offences and neither will be filtered. We find that this affects people who have moved house or women who have changed their surname after marriage. We consider those to be minor offences. That is something that we can explore later on. Those convictions could not be filtered.

As a society, we need to ask ourselves whether keeping that person in the criminal justice system, subject to the record-keeping processes, forcing them to declare that conviction for the rest of their lives, denying them opportunities both for travel and work and, therefore, increasing their dependency on the welfare system is really acting to protect the public. This is not what the justice system or the criminal record system was designed for, yet these are everyday occurrences that are being referred to our helpline. We therefore welcome a proposal to build in an appeals mechanism to the new filtering system. We recognise that this should come in the Justice Bill and we wish to be consulted on that.

We are deeply concerned that recommendation 21 of the youth justice review has not been implemented. We strongly recommend that this be reconsidered and a mechanism put in place for people to apply for old or minor convictions that were received when they were under the age of 18 to be removed from criminal records. To continually punish and stigmatise anyone for a minor offence committed when they were a child can ruin their life chances and affect their mental health, again creating barriers to employment, education and training.

You will probably be familiar with the stories of Simon Weston, a Falklands war hero, and Bob Ashford. Simon Weston went forward to stand as a Conservative candidate and Bob Ashford as a Labour candidate for police and crime commissioner roles. Both were required to withdraw because of minor convictions which they acquired under the age of 18. We frequently hear stories from young people who have been denied opportunities to study to become a nurse or a teacher or for other professions due to minor convictions that were received in their youth which are not actually relevant to their chosen career pathways. We all know young people who have been influenced by their peers. Too often, young people who enter the youth justice system have been in the care system and may have had a troubled start to life. We do not want to continually punish them for an unwise decision that they made as a child. This is an issue that we hope to discuss with you in more detail in the coming months, though of course we are happy to answer any questions today.

Our response to the clause that relates to fines outlines a number of concerns. We are clear that the defaulting of fines imposed for minor matters should not result in imprisonment and this is clearly a disproportionate punishment. We welcome that the practice of this is currently paused. We are disappointed that the policy has not yet been formalised. Maybe that is something that should be included in this legislation. We know that we are not the only people who are concerned. We regularly hear stories of police and prison officers who actually act to pay off small fines to stop people going into prison. With regard to the proposed prosecutorial fine, it is critical that the circumstances for disclosure of these fines be clarified. This is, at heart, a diversionary measure to take people away from the criminal justice system. Any form of a record of that fine that would in the future be disclosed to employers would, in fact, undermine the diversionary aspect of the disposal.

We raised a number of other points in our responses, including the importance of avoiding unnecessary delay but, critically, without compromising justice, as well as recommending that the families of those who offend, or are alleged to have offended, are recognised as silent victims. Consideration must be given to all of those who are affected by the criminal justice system including indirect victims who are left to navigate the system alone. We are particularly concerned about the impact of the justice system generally and imprisonment particularly on the children of defendants. We recommend that these children be given the opportunity to submit personal impact statements to the court alongside the victim's personal impact statement to be considered by the judge when sentencing. This is already being explored in England and Wales and has been well trialled in Scotland. We work with families affected by imprisonment, and we recognise the impact it has on those left behind. Therefore, we call on the Committee to recognise those families as indirect victims of crime. They have a similar need for information and support to cope with the justice system.

In conclusion, we welcome the opportunity to share our views and experience of our service users with you today. The current criminal records system is not working as well as it could. A mechanism to remove old and minor convictions from the record is needed. We highlight that imprisoning people for fine default should be formally stopped. Crime has indirect victims, too, namely the families and children of defendants. A number of concerns are outlined in our response, although we welcome many elements of the Bill. We recently wrote to the Committee to invite you to hold one of your meetings in our Belfast office. I hope that that will provide an opportunity for you to meet some of our staff and service users and to learn a little bit more about the variety of the work that we do. In the meantime, I hope that our comments assist you in your considerations. We are happy to answer any questions.

The Chairperson (Mr Givan): Thank you. NIACRO did not comment on some of the sections that we previously covered, so we will focus on those that NIACRO has commented on. The first one is section 3 around prosecutorial fines. You made the comment about trying to keep those who do not pay fines out of custody. I think that that is something that most people share. Do you have any thoughts on how the fines could be more restorative in nature?

Ms Lyner: That is exactly the point. Very many fines, as you know, are quite small. It is not the amount of money that is so important; it is the measure of trying to regulate behaviour and say what is acceptable and what is not. In our view, if we have passed the first fine and we are now starting to write a pattern of behaviour for which fines will continue to be given, we think that it would be appropriate to have something else. A supervised activity order is a useful model to look at ways in which people can pay back something to society in a different way. I absolutely recognise that the restorative approach is what is required.

In situations where people are evidencing that they are struggling with paying back their fines or whatever the issue around behaviour is, there are many things that we can do, such as money management schemes, that would help people to order their behaviour in a different way. The notion is that we have very many people who default on fines. The majority of people do not default; the majority pay the fines. Where we have a pattern of that not being the case, we do not think that it is patterning out good behaviour to allow those things to continually default, because prison will become the option. We have a pause in the system. It seems to be an appropriate time to try to draw in an amendment to make that change.

Mr McCartney: You state in bold type in your presentation that:

"We recommend that a low level summary offence is clearly defined".

Is it not currently defined well enough?

Ms Lyner: It states:

"no definition has been given in the legislation".

We feel that that is clearly a piece of work that needs to be done.

Mr McCartney: Is there none listed? In the fixed-penalty notice, there is, but there is not in this. That is fine.

I agree with the initial comments and the Chair's comments around the fines and how we approach them. Should something be put in place so that someone is not given a prosecutorial fine if it is known that they are not in the position to pay it?

Ms Lyner: It does not seem very sensible to us to waste the time of the criminal justice process by going to something that is not going to have a good outcome. In terms of trying to help people to move towards better behaviours, we want to have something that they can achieve. That would be a positive.

Mr McCartney: So, running alongside it, there should be some provision for the supervision —

Ms Lyner: Absolutely. The supervised activity orders have a model, although I am not saying that we have had an extensive enough trial to be sure that they are the correct model. We need to think about something that has a restorative element to it that is diversionary and keeps people out of the high-cost end of prison.

Mr McCartney: The prosecutorial fine process has to be accepted by the person, so that it is not an imposition.

Mr Dickson: Thank you for your presentation. I very much agree with your line on prosecutorial fines. The traditional scene in court is that the judge listens to the evidence and the solicitor says, prior to the judge passing sentence, that his client does not have any money to pay the fine. In the past, traditionally, the judge just awarded the fine. What is the role for organisations such as yours and others in providing background information to the court so that the judge will not simply say that he has heard this from every solicitor who has passed through his court and that he needs hard evidence to demonstrate that the person does not have the resources to pay the fine? I suggest that this will put an additional burden on those who have to provide such evidence and background information to the court. I think that it is a good thing, but it is a burden on organisations such as yours, and others.

What is the alternative to fines? How can society, in a sense, be satisfied that the fine has been paid?

Ms Lyner: There are two points. Over the years, we and others have looked at various models whereby you would be able to make a referral to somebody who had a duty in court, a third-party provider, to assess means and incomes. I do not think that that should be too burdensome. Clearly, cost would be an issue.

On the alternative to fines, you could look at other ways of people providing payback. The Republic of Ireland and Scotland are running quite significant payback schemes that seem to be going down particularly well with the public, and offenders are engaging very positively with them. I think that we need to look outside the box.

Mr Dickson: That is very helpful.

Mr Frew: I have some sympathy with this trend and this argument. You talked about supervised activity orders. Are you suggesting that they should be applied more often than fines? Are you also suggesting that they should be applied if the fines are not paid?

Ms Lyner: There are two elements. As we know, and as evidence shows, many people pay the fine, regardless of whether we have gone through a process, as Mr Dickson suggests, of testing financial capability. Possibly, paying the fine, and we know that they are relatively small fines, does not have as much impact as community payback. It is important in this process that, if we are trying to move to people's behaviour improving and being less of an issue to society, it is important that that process is available. I do not think that there is anything particularly restorative about a fine. There is something much more restorative about a community payback situation.

Mr Frew: Is it enough community payback simply to refer someone who has been involved in an alcohol-related offence to an alcohol awareness course? Do you think that we need more than that? Obviously, it would help, but is there a punishment involved in that?

Ms Lyner: Also, will it change behaviour? No. We would probably have to look at what the programme comprised. It is perfectly reasonable for us to have a conversation with people who supply programmes at the moment and look at the components. In that situation, looking at one's own alcohol management may not be enough. We need something more testing. If we end up putting someone in prison for three, four or five days for defaulting on a payment, we cost the system £3,000. Let us look at what we could do, probably for a lot less, that might have a much higher impact.

Mr Frew: Is there a scale or range of supervised activity orders? Excuse my ignorance on this.

Ms Lyner: We have trialled some elements here, but I do not think that, as yet, the trials have been extensive enough.

The Chairperson (Mr Givan): No other members wish to speak on this section.

Do members have any comments on victims and witnesses?

Mr McCartney: I have a number of points on your submission. We spoke earlier about the types of offences and how they are defined. I have broad sympathy for what you say, but what is meant by a victim can be difficult. When does the victim become defined? The wording "indirect victims" can lead to a situation that would be very hard to put into legislation. How do we pin that down?

Ms Julia Kenny (NIACRO): Every time that somebody is accused of an offence or goes to court, their family members are impacted just as much by the criminal justice system, so they would be indirect victims. We recognise that a victim charter will come from the EU directive, so we realise that it may not be possible to include the notion of indirect victims in its scope. However, the charter outlines a list of provisions for direct victims of criminal conduct. We are saying that many of those provisions would be just as applicable and just as needed by indirect victims: for example, being treated with courtesy and respect, being updated on processes and having the court system explained to them. In our experience, the families of people in prison and the families of people going through court could also benefit from that kind of advice.

Mr McCartney: Would the families make it known that they wished to be so informed or would there be an assumption that you have to inform them?

Ms Kenny: Under the victim charter, easy-to-read leaflets are being compiled, and every time that somebody reports a crime, they are given a leaflet. There is no reason why a similar leaflet could not be given to the family or partner of somebody who has been arrested to explain what happens next. We had an instance of a father being arrested, and the wife and children were left not knowing when they would see him again, where he had been taken or how they could visit.

Mr McCartney: You recommend that "stringent measures" be put in place in the event of non-compliance. What type of measures do you think should be put in place to make people comply with the charter?

Ms Kenny: That needs to be explored further. We recognise that no criminal or civil proceedings would be brought against any agencies for non-compliance but that it may come up in court. We are saying that it needs to be emphasised that it is important that all agencies know that it is not enough just to have a charter; it has to be implemented properly.

Mr McCartney: On impact statements, your submission states, in bold:

"It is for this reason that we recommend the DOJ introduces clear guidelines and regulations as to who can assess the Statement."

Do you think that access is too narrow at present or too broad?

Ms Kenny: I think that it is too vague. There needs to be a duty of care to the victim, and we propose also that children of defendants have an option to submit an impact statement. To protect the victim, there needs to be a finite list of agencies and people with whom that can be shared

Mr McCartney: Thank you very much.

Mr Douglas: Thank you for your presentation. Raymond mentioned the meaning of a victim, and this is a follow-on from that. At this point, Julia, you say that you agree with the definition of a victim.

Ms Kenny: Yes, but we want it to be expanded. We believe that indirect victims should also be acknowledged as victims of criminal conduct.

Mr Douglas: During the Troubles, I knew a lot of people, including family members, whose son or father went into prison, and you could see that they also served the sentence. You say that you want to include all those impacted by the offence. What do you mean by all? I read that as my mother, my father or my brothers and sisters, but what do you mean by all?

Ms Kenny: Specifically, family members of the person in prison or the defendant. We use that terminology because the individual may not be living with their family; they may be living with a friend or a partner. Therefore, we did not want to limit it to blood relatives.

Mr Frew: Can we expand that argument or logic? I understand the rationale, but where is the line drawn? Obviously, if a father is arrested, those affected are the children and the wife; for an 18- or 19-year-old living at home, their brothers and sisters. However, a 30-year-old's brothers and sisters will not be impacted to the same extent as if they were in the same household. Where do you draw the line around the extended family? Where do you stop?

Ms Lyner: We are talking about people for whom having a relative in prison would have a serious impact. You are right to say that as people grow older, their relationships may lessen. We are balancing two key things. The first is that we are really thinking about children. An approach being trialled in England, Wales and Scotland takes account of the research that suggests that outcomes for prisoners' children are poor, and the breakdown of their relationship is an unhelpful element of that. The second is that we also know from research that the outcomes for the person in prison, be it mum or dad, are better if they stay in contact. So we have a "child at the heart" approach, but we are also being a little more selfish and saying that we also want to know that this is about a good resettlement outcome and that relationships will be sustained over the period in prison, through good visiting arrangements, good contact visits and maybe special arrangements made for children who find it hard to travel, or whatever. The impact would be about trying to maintain the contact. It does not necessarily change the sentence, but it asks questions: what about the circumstances of the sentence could be made better, and can we keep somebody at Maghaberry or transfer somebody to Magilligan so that visiting is easier?. Those are the types of outcomes that we are thinking of.

Mr Frew: Thank you for that.

A massive issue is the spiral of crime that occurs when young people follow in the footsteps of their parents. We met the Probation Board a couple of weeks ago and heard about the cycle whereby children commit crime and end up in prison, alongside their father or mother in some cases. Is there any way in which to try to deal with it in the Bill?

Ms Kenny: We have found that communication is an important first step. It is important to update the family, who, in turn, can update the children on, for example, where their mother or father has gone, when they are coming back and when they can visit. We can also, if appropriate, help to facilitate those visits. As Olwen said, we find that such visits not only help the person who is in prison to desist from crime and stop their offending behaviour but can prevent the young person developing that offending behaviour. When a parent goes into prison, a young person is more likely to suffer poorer educational outcomes, mental health problems, stigma and bullying at school. They also show a tendency to withdraw generally. So, by providing that communication and the kind of provisions outlined in the victim charter to indirect victims as well, we can start to break that cycle, support those families and remove some of that stigma so that the families and children can seek support.

The Chairperson (Mr Givan): No other members wish to speak on that point. Part 5 is about criminal records.

Mr McCartney: On clause 36, a lot of people see the benefit of portability, but you seem to have some concerns about it and discrimination. Perhaps you would talk about that.

Ms Anne Reid (NIACRO): Yes. We would certainly welcome portability, if its use by employers, or "registered bodies", as they are known with Access NI, is managed and audited properly. The current process means that the registered body applies on an applicant's behalf for a standard or an enhanced criminal record check.

As part of that process, there is a code of practice requirement that those bodies must adhere to. Our concern is that, as and when portability is introduced, that may not be as tight. It is not that we are saying that it is particularly tight at the minute, but there could be opportunities for those employers perhaps to disregard that code of practice and just use it, probably more than it is used already, to discriminate against people unnecessarily because of a particular disclosure. An example of that would be one caution appearing on an enhanced disclosure check. That may weed somebody out of a job as a health-care worker for a minor offence that is not filtered out at that stage or later. Our concern about portability is that it must be managed, monitored and audited by Access NI to ensure that it is used fairly.

Mr McCartney: OK. I think that you have some concerns about the enhanced checks in clause 39 as well.

Ms Reid: We find that any applicant going through the enhanced or standard check for a job that requires that experiences quite a lot of unnecessary discrimination. Our line is always about risk management and making sure that everyone is at least afforded the opportunity to apply for employment. The employer then looks at risk in terms of the duties of the job and the nature of that disclosure, whether it is a caution, an informed warning, a diversionary youth conference or a conviction. We find that the code of practice is not being audited in its full sense by Access NI. That means that employers are using disclosures as a means to disregard very good and capable people. They are not really looking at the business case. Our advice to employers is that they should see that disclosure as part of the greater holistic recruitment process, but, unfortunately, that is not happening.

As Olwen referred to earlier, in the last 12 months, there has been a marked increase in calls to the advice line, mainly by applicants but also by employees experiencing difficulties in how an employer is using or interpreting the disclosure of the information in the check to dismiss someone or rescind a job offer. That is the type of case that we deal with daily.

Mr McCartney: One of your recommendations is that Access NI needs to be more customer focused.

Ms Reid: Yes. We receive quite a lot of referrals to our advice line through Access NI's helpline, but the difficulty that many applicants experience is that they just cannot get the answers that they are looking for, such as how long it takes a check to come back. Perhaps, if they have a query about their enhanced disclosure check, there is the feeling that they do not get the customer focus that they are looking for. Quite often, Access NI refers the individual to NIACRO for advice, so, unfortunately, that is where we pick those cases up. We could probably sit here until next week and cite many examples of people, including employers, experiencing difficulty with the whole regime.

Mr McCartney: I am aware that there have been changes to the Rehabilitation of Offenders Act in England and Wales. Have you done any work on its impact and whether it would be a good provision to bring across?

Ms Reid: Olwen may want to pick up some of this, but, particularly in the six or seven months since that legislation was introduced in England and Wales, people have been phoning our advice line and asking whether they can avail themselves of that same system. We have anecdotal evidence and evidence through the advice calls to demonstrate that people want to know why, for instance, in Northern Ireland, their fine is disclosable for four years longer than it would currently be in England and Wales. They do not think that fair, and we have made the argument to the Department and the Minister that we need to have a debate on the rehabilitation of offenders legislation in general. It does not do what it is supposed to do, which is to move people away from the criminal justice system. In fact, in many cases, it is used by agencies to discriminate — I keep using the word "discriminate" — and to deny people the opportunities that they are entitled to. So, yes, we certainly call for a root-and-branch review of the rehabilitation legislation here.

Mr McCartney: Were the changes in England and Wales by regulation or primary legislation? Do you know?

Ms Reid: That was pushed through by way of a private Member's Bill.

Ms Lyner: We have been meeting NACRO and SACRO over the past few months to look at our different criminal record regimes and the differential impacts. We intend to do work on that early in the new year and try to pull out where there is something that is really useful and where there is something that seems to be lagging behind. The overall perspective is that the rehabilitation of offenders legislation was introduced in the 1970s and requires revision, as do most things that have been around for that length of time.

The Chairperson (Mr Givan): Members have no questions on the early guilty pleas or the general duty to progress criminal proceedings, so thank you very much for coming before the Committee.

Ms Lyner: Thank you for that. I will just remind you of our invitation to you: we would really like to see you, if we can, early in the new year.

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