Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The witnesses who are providing evidence today are Andrew Dawson, director of criminal justice policy and legislative division in the access to justice directorate; Angela Bell, sentencing Bill manager in the access to justice directorate; Máire Sheehan, legal and legislative support in the access to justice directorate; and Michael McAvoy, director of community safety division in safer communities directorate. As always, you are all welcome to the Committee.

Andrew, do you want to make an opening statement?

Mr Andrew Dawson (Department of Justice): I will make a quick opening statement. As you have our written briefing of 18 November, I will speak briefly on the background of the development of the Bill and give a brief overview of the planned provisions.

The sentencing policy review was launched in 2016 by the then Justice Minister, Claire Sugden, and that was to consider the legislative framework for certain categories of crime; the setting of tariffs for murder; the arrangements for unduly lenient sentences; the effectiveness of community sentences and how those could be further utilised; and the effectiveness of the current sentencing guidelines mechanisms. The overarching aim of that review was to enhance public confidence, consistency and transparency in sentencing. The recommendations arising from the review were subject to public consultation in late 2019, and the Department subsequently published its analysis of the responses received in September 2020. Having reflected on the responses to the consultation, the Department published its proposed way forward in April 2021. Executive approval to draft the Bill was received in December 2024, and we anticipate that the Bill will be introduced to the Assembly in early 2026.

The Bill will include the following provisions. First, there will be a statement of the principles and purposes of sentencing for adult offenders to which the court will be required to have regard.

The principles in the Bill to be introduced will be proportionality, fairness and transparency. The purposes will be punishment, protection of the public, including victims of crime, deterrence, rehabilitation and reparation.

The Bill will provide for a new offence of assaulting a person who is providing services to the public, performing a public duty or providing a public service. That will seek to address the increasing aggression against a wide range of workers and deal with assaults equivalent to common assault. It is intended that the Bill will provide that the fact that the victim is such a worker is a statutory aggravating factor, where a range of more serious offences is committed.

The Bill will make provision in respect of unduly lenient sentences. At present, where a sentence in certain Crown Court cases is considered to be unduly lenient, the Director of Public Prosecutions (DPP) may refer to the Court of Appeal for review. The Court of Appeal has the power to order a different sentence if it considers that the original sentence was unduly lenient. The offences to which that relates are, at the moment, somewhat of a patchwork. The Bill will simplify and expand the unduly lenient sentencing arrangements so that any sentence imposed in the Crown Court can be referred to the Court of Appeal as unduly lenient.

The Bill will make provision in respect of offences of causing death or serious injury by dangerous driving. Following a campaign by the families of victims of road deaths, the Bill will provide for a range of such measures. It will increase the maximum prison sentence, from 14 years to 20 years, for causing death or serious injury by dangerous driving or by any of the four "careless driving when under influence of drink or drugs" offences. The minimum obligatory disqualification periods for those offences will be increased from two to four years and, for a repeat offender, from three to six years. Sentences for the offence of causing death or serious injury while driving disqualified will increase: when tried in the Crown Court, the increase will be from two years to four years, and, at summary conviction, the increase will be from six months to 12 months.

The Bill will improve the current requirement for the judiciary to identify the exceptional reasons for not imposing an obligatory disqualification and for not imposing an immediate custodial sentence. Offenders who are disqualified because of those offences will not be able to have their licence restored before two thirds of the disqualification period ordered or the obligatory minimum period for the offence, whichever is greater, has passed. The Bill will prevent a repeat offender of any of those offences from applying for a reduction of a disqualification imposed until the obligatory minimum period for disqualification for a repeat offender — six years — has been served. Where a driving disqualification is imposed at the same time as a custodial sentence for that offence, the disqualification period will be extended to reflect the custodial sentence imposed. The purpose of that is to help ensure that any disqualification will mostly be served after release from custody.

The Bill will make provision in respect of tariffs for mandatory life sentences and release following a whole-life tariff. On conviction for murder, the court must impose a life sentence and then decide the tariff — that is, the period that the offender must spend in prison before becoming eligible for release on licence. The Bill will put on statute the starting points for calculation of the tariff and make a range of other provisions to provide clarity around the whole-life tariff regime.

I turn to the community sentencing provisions in the Bill. Suspended sentences do not currently include any further restrictions or requirements. In our view, that limits their ability to address the purpose of sentencing. It is proposed that the Bill will allow a suspended sentence to be tailored more to individual cases where a sentencing purpose or purposes can be met by the addition of one or more community requirements.

I turn to sentencing for attacks on vulnerable victims. The Bill will provide that, where a person is convicted of any offence, the fact that the victim is a vulnerable person will become a statutory aggravating factor. The definition of a "vulnerable person" will include a child and a person whose ability to protect themselves from violence, abuse, neglect or exploitation is significantly impaired by physical or mental disability, illness, old age or any other reason.

I turn to sentencing guidelines. The Bill will include provision for the Court of Appeal to provide or review guideline judgements without having to wait for a case to come before it. The courts will be required to have regard to the guidance in those judgements and current judgements that have already been identified as Court of Appeal sentencing guidelines. The provisions that I have mentioned are the outworkings of the 2016-2021 sentencing policy review. The Bill will contain measures in two additional areas: Charlotte's law and hate crime.

The Charlotte's law provisions are designed to encourage those suspected of, charged with and sentenced for a "no body" killing to give details of the location of their victims' remains or how the remains were disposed of. The inclusion of those provisions in the Bill is a result of the campaign led by the family of Charlotte Murray, who went missing in 2012. John Miller was convicted of Charlotte's murder in 2020, despite denying it and her remains never having been found. That was the first such conviction in this jurisdiction. The campaign has been supported by the family of Lisa Dorrian, who disappeared in February 2005 and whose body has never been found. On behalf of the Department, I thank both families for their support during the development of the policy and commend their continued dedication to honouring the memory of their loved ones.

Charlotte's law will make ongoing failure to disclose the location of victims' remains or details of how they were disposed of a statutory aggravating factor requiring an increase of at least 30% to the custodial part of the sentence or life sentence tariff that would otherwise be imposed to reflect the impact that non-disclosure has had on victims' families and friends and on society as a whole. The Bill will provide for a statutory reduction in the custodial part of the sentence where a post-sentence disclosure is made. The amount of the reduction will be a proportion of the additional sentence imposed by way of aggravation and will reduce on a sliding scale the later the disclosure is made. The Bill will also make provisions similar to Helen's law, requiring parole commissioners to take non-disclosure into account when considering a prisoner's release at the end of their custodial sentence.

I turn to the hate crime provisions. The Bill will implement a recommendation of the independent review of hate crime legislation (IRHCL) to include a statutory aggravator model for hate crime so that, when the offence is treated as aggravated and proved, the court should treat that as an aggravating factor to increase the seriousness of the offence, which will then allow for increased sentencing.

I will conclude with a few words on process and timing. We originally hoped and intended to introduce the Bill before the end of this calendar year. Unfortunately, there will be a short delay until the new year. The drafting of any Bill is a complex matter, and some issues have arisen that we are required to deal with. That is taking a little more time than expected, which is regrettable, but it will ensure that the Bill that is introduced to the Assembly is in as complete a format as possible. We do not consider that the short delay will impact on the overall progress of the Bill. We look forward to assisting the Committee with its scrutiny of the Bill today and during Committee Stage.

The Chairperson (Mr Frew): Thank you, Andrew. What issues have led to the delay?

Mr Dawson: We have been finalising all the drafting. A couple of matters of detail have to be worked out, specifically in relation to sentencing guidelines and whole-life tariffs. Those are pretty technical and detailed matters that, unfortunately, we have to take a bit more time to work through.

The Chairperson (Mr Frew): OK. I do not want to get into the technical weeds now, but could you produce a paper on the issues that have led to the delay?

Mr Dawson: Sure.

Mr Beattie: Thank you for the briefing; it was really useful. I have three questions to explore. The proposals on unduly lenient sentences are good in part, but we are still not dealing with the Magistrates' Court. Why are we not putting in a procedure to deal with unduly lenient sentences coming out of the Magistrates' Court, which we cannot appeal?

Mr Dawson: Our approach takes into account the fact that the scope for significant failings in the Magistrates' Court is more limited than it is in the Crown Court, because the vast majority of maximum custodial sentences there are for six months. We also take the view that extending the arrangements to some Magistrates' Court sentences would risk diminishing the purpose of the unduly lenient scheme and, perhaps, even add confusion over which offences are included.

Ms Angela Bell (Department of Justice): On a practical note, there is also a resource issue. We have approximately 25,000 court disposals per year, of which about 1,700 come from the Crown Court, so, as you can imagine, extending the arrangements to all sentences could have significant implications in respect of the extra work generated.

Mr Beattie: Yes. I get exactly where you are coming from, but I am always mindful that all those cases involve a victim. I will give you an example. An individual assaulted three women. The case went to the Magistrates' Court, and, for those assaults on three women, the individual got a £300 fine. He could have been given six months for each assault and a £5,000 fine, but he got a £300 fine. Had the case been heard in the Crown Court, I would appeal, but, because it was in the Magistrates' Court, I cannot do so, and neither can the Director of Public Prosecutions. There are instances in which it is absolutely clear that the sentence is unduly lenient but there is no mechanism to challenge it.

Mr Dawson: We cannot comment on individual cases, as you know. We have to take into account the discretion and independence of the magistrate. In drafting the Bill, we took an approach that was based on the scope for significant failings in the Magistrates' Court being, on the whole, more limited. That is the drafting and policy approach that we decided to take.

Mr Beattie: Fair enough. I will not get into the weeds of it, but I will say this to you: looking at the discretion that we give the courts is fair enough, but I am thinking about the victim, who has absolutely no recourse to action. The example that I gave is not the only one. Every one of the 329 cases of non-fatal strangulation of females — women and girls — that go through the Magistrates' Court needs to be looked at. That is fair enough: you have given me a clear answer, even if, to be honest, I do not agree with you.
My second question is about Charlotte's law. Paragraph 9b of the annex to your paper refers to provision for a post-sentence disclosure to result in time being taken off the sentence. Can you give us an idea of how that will work? I will give you an idea of what, in my head, it means. Ten years after a person has been given a 15-year life sentence — I am using basic figures — he could disclose where the body is. At the end of the day, that is what we want, but are we really saying that we will reduce his sentence after what he put the family through for 10 years? Would it not be better to turn it the other way around so that, if he does not make a disclosure, his sentence will be increased?

Ms Bell: We worked through every stage of the criminal justice journey for such an offender and tried to come up with options that would encourage disclosure at every stage. In close consultation with the families, we have constructed a scheme that will significantly increase the sentence at the point of sentencing and provide for a proportionate reduction in that increase as time goes on. By the time that they are perhaps 10 years into a sentence, which, for a murder, could easily be a 20-year tariff, they will get only half of the reduction that they could have been given had they made a disclosure on the day of the sentence or the day after that. A formula will be applied that reduces the sentence reduction every day so that there is ongoing encouragement during the sentence to make a disclosure at the earliest point.

Mr Beattie: The main thing is that the families have really applied themselves to developing the scheme: that is a positive thing. I am just scrutinising it to get a better sense of it. For example, what happens if the loved ones of a victim pass away before the disclosure is made? Will the loved ones having passed away by the time the individual discloses where the body is be a factor in the decision on whether to take time off his sentence?

Ms Bell: No. The decision on the time to be taken off the sentence will be automatic. A formula will be applied.

Mr Beattie: Regardless of whether the families have —.

Ms Bell: Yes. There are considerations beyond the family. There are the friends, and it is an issue for society in general if a body has not been found. The scheme addresses all those people.

Mr Beattie: OK. Fair enough. My last question is about sentencing guidelines, which, to be honest, I have a real issue with. It says that the courts will be required to "have regard to" guidelines. That does not mean that courts have to adhere to the guidelines. If they just have to have regard to them, they can decide what they want to do, and, as long as they justify it at a later stage, that is OK. Is that how it works?

Ms Máire Sheehan (Department of Justice): No, the obligation is to have regard to the relevant guidelines. If courts do not adhere to the relevant guideline or they deviate from it, they must, at that time, give reasons why the guideline is not being followed. It could be because the circumstances of the particular case do not necessarily fit with the guideline, but, at least, the people present in the court would get some insight into and understanding of why what they anticipated would occur has been deviated from. Equally, courts may deviate from a guideline because they want to give a higher sentence, having identified additional aggravating factors.

We consulted on two options in the consultation: "have regard to" or "required to follow". It was a kind of six of one and half a dozen of the other situation as to whether it would make any difference. More important is that people want to understand why somebody gets x when there are guidelines that give a range; they did not understand how that fitted in. A large element of the sentencing guideline is about trying to improve the transparency of why the judge got to where they got to on the sentencing, provided they followed the necessary steps. The Court of Appeal has, in many guideline cases — repeatedly — said that they sometimes get it wrong. That is why you have appeals and unduly lenient references. Sometimes an error is made, whether it is in law; in ignoring something that was in a guideline; or, maybe, where a reason is not even given. We want to improve the sentencing approach and avenues for judges and those present in the court. The people present will have an expectation, and they will get an explanation of why a particular sentencing range has been reached — what were the aggravating factors; what were the mitigating factors; did they relate to the offence or the offender? The judge will then come to their conclusion and make a reference.

It is helpful that the Northern Ireland Court of Appeal, in a recent case, gave guidance to both the counsel for the defence and for the prosecution to bring to the attention of the sentencing judge any relevant guidelines and asked them to adopt that as a practice going forward. Sentencing is an evolving matter, but we are trying to improve transparency.

Mr Beattie: It is an evolving matter, and it is about transparency and consistency. However, it is also about giving confidence to the general public, and, to be honest, the general public are losing confidence in the judiciary and sentencing. You see that time and time again. What you have just explained makes perfect sense for the Crown Court, but it does not make perfect sense for the Magistrates' Court, because you cannot appeal a Magistrates' Court sentence. If a judge goes outside of those guidelines and gives a reason that is regarded as valid but makes no sense whatever, you cannot challenge it. He only has to have regard to the guidelines — he does not have to adhere to them — and we cannot challenge that Magistrates' Court decision.

Ms Sheehan: The definition of "relevant guidelines" that we have asked for will include the Magistrates' Court guidelines. It surprised us to find, during the consultation, that some people are not even aware that the Magistrates' Court guidelines exist and are there to improve the consistency of approach in sentencing. Those tiers will be there. Some of the Court of Appeal sentencing guidelines also apply the guidelines on the principles of sentencing. That definition will be there. We hope that, by putting it in black-and-white law, that will heighten the awareness of any member of the judiciary who might not be as aware of them.

We must remember that the Magistrates' Court is a court of summary jurisdiction but not a court of record. There could be 22 pleas going through the Magistrates' Court in the space of half an hour or an hour, and I say that as someone who was a prosecutor for 10 years. It is a court of summary jurisdiction. Magistrates' Court judges try to give reasoned decisions, but we cannot expect the same detail of reasoning as we and, indeed, the Court of Appeal expect from the Crown Court.

You mentioned an assault case, Mr Beattie. Assault, particularly common assault, ranges from not laying hands on the person but putting the person in fear that you were going to do that, right up to hitting a person in the face without leaving a mark. There is a wide range. Without trespassing on the independence of the judiciary and without knowing all the facts, one would imagine that the injury or harm caused in such cases would be slight or that it would be one of those "putting the person in fear" cases. In my 10 years working as a prosecutor, I did not see many £100 fines given where the victim had a mark having had hands laid on them. I am trying to put it into context.

Mr Beattie: You have put it in context well, and I am not challenging you or your knowledge. However, in many ways, I am a layperson who looks at it from a distance and does not fully understand some of these things. The individual did not turn up to court. The police had to find him, arrest him and bring him to court. I do not understand why that was not regarded as an aggravating factor whereby he would get more than a £100 fine for each of his assaults on the three women; in fact, five women made claims of assault against him.

You are absolutely right that the cases might be at the lowest level, but we are talking about public confidence. My concern is that the judiciary only has to have regard to the guidelines and does not have to adhere to them. I do not understand why we are not a little stronger on that. That would not undermine the independence of the judiciary. The judiciary should adhere to the guidelines, not just have regard to the guidelines.

Ms Sheehan: One cannot predict in black-and-white letters the myriad situations that may arise in an offence. Consider assault, murder or any other offence: there are so many ways in which the act can occur; there are so many histories that the offender may have; and there are so many aggravating or mitigating factors that may play a part. Guidelines are guidelines: they do not cover every fact that can occur in an offence. Therefore, the sentencing judge has to identify the most suitable offence to be the lead offence. If there are multiple offences, the judge must decide which is the lead — the most serious — offence and take their first line from that. If there are other offences, the judge will have to deal with them but also reflect the principle of the totality of sentencing. We have used the phrase "have regard to" because, in each case, until the most serious offence is identified and, in a case of multiple offences, until those other things come in, it has to be considered whether there are aggravating or mitigating factors for each offence within the range of sentencing for that offence.

It is a complex exercise that requires a certain art, which is why experienced judges are put into the Crown Court. There is a practice called "ticketing" for certain offences in the Crown Court. All of that is linked to the training that the judiciary will have had to do to be able to hear those cases. If it is stronger than "have regard to", will there be flexibility for them to reflect something that the guidelines do not?

There has been a lot of criticism of how prescriptive the sentencing guidelines in England and Wales are. You find that people try to fit an offence into one of three categories — level 1, level 2 or level 3 — and maybe forget certain aggravating factors, because those are not mentioned in the sentencing guidelines, and, as a result, a sentence is overturned or increased, when it is appealed under the unduly lenient sentence scheme in England and Wales, because they stuck rigidly to the guidelines.

We saw the critiques of that. We are trying to find a balance. At another time, one will maybe try to work out whether it worked, whether it improved matters and whether it provided a more consistent approach to sentencing. That is the element that we need — consistency of approach to sentencing — rather than consistent sentences, because sentences have to be reflective of the offender. You do not treat somebody who has no record in the same way as somebody who has 20 previous convictions for the same offence. There will be different outcomes, depending on whether there are aggravating or mitigating factors. I think that "have regard" gives it weight. The phrase is used frequently in legislation, and the judiciary knows what it means. It knows what the Court of Appeal, in particular, expects it to do. If you are deviating, you had better give a reason for doing so. There are Court of Appeal guideline cases and many judgements in which it has criticised somebody for not giving a reason for something that, in statute, they were required to give a reason for. Sometimes, the Court of Appeal has used that as a reason to vary the disposal imposed at the Crown Court.

Mr Beattie: That is a useful explanation. I will put my cards on the table: the Sentencing Council for England and Wales — there is something similar in the Irish Republic — is far superior to what is being proposed here. However, you have explained your reasons well.

Why does the Bill have nothing that creates continuous, compulsory personal development training for our judiciary? At the minute, we are telling everybody to get trained. We just talked about the need for the police to be trained, as well as everybody else, yet, at no stage is there compulsory training for our judiciary. Should that not be looked at?

Ms Sheehan: I am not sure what you mean by "compulsory", because I am conscious that the Lady Chief Justice has a statutory duty to provide training. I am also conscious from my liaison with the Lady Chief Justice's office that there is regular training in lots of areas and that cases are referred to be worked on with the Judicial Studies Board (JSB), which is mainly based in England and Wales but has a direct link to the training provided to the judiciary here not just in the criminal law but across each area of judicial business. That is supported by the work of the Lady Chief Justice's sentencing group, which meets twice or three times a year and is led by one of the Lords Justice of Appeal. They identify the Court of Appeal sentencing guidelines and areas that indicate a need for some additional training or refreshed training. There is, therefore, training provided every year to the judiciary in different areas.

Mr Beattie: You are absolutely right. I will just clarify what I said. There is training; absolutely, there is training. I am not disputing that. What I am disputing is the fact that they do not have to go to it if they decide that they do not want to, because it is not compulsory, and it is not personal development either. That is the point that I am making. If members of the judiciary say that they are not going, they do not go. There is nothing compulsory. Domestic abuse training, for example, is compulsory for the PSNI, but it is not for the judiciary. I do not understand why that is the case. That is the point that I am really making.

Ms Sheehan: I do not know that I have an answer to that, Mr Beattie.

Mr Beattie: That is OK.

Ms Sheehan: I can only say that any judicial training that I have attended has had quite good attendance, but that is in employment law, not anything else. I cannot say that there is, but I suspect that it is like anything. They are independent, but I have no doubt that there is persuasion if somebody is thought to need training. It is perhaps no different in that respect, but it is not black and white.

Mr Beattie: Persuasion is one thing; legislation to tell you to do it is something else.

That was really useful for me. Thank you very much for that.

Ms Sheerin: Thanks to you all for coming in, and thanks for that lengthy explanation, Máire.

I want to ask about engagement, particularly with the rights sector, on the drafting of the Bill. Has the Human Rights Commission been engaged?

Ms Bell: It has, yes.

Ms Sheerin: OK. What was its feedback on the proposals?

Ms Bell: I suppose that it is waiting to see the final shape of the Bill when it is in its finished form. At this stage, the Human Rights Commission has not raised particular concerns. It gave general advice just to be sure that we do not go against any retrospectivity that is detrimental to offenders and outlined the usual proportionality issues that feed into human rights compliance, which we have been keeping a close eye on.

Ms Sheerin: OK. A review was carried out two or three years ago by Judge Marrinan, and there was a bit about protected groups. We think of the section 75 categories, which are extensive. In what we have been presented, there are only four specific groups. I know that religious groups are included, but there had been a conversation about broadening the definition of sectarianism beyond religious practice and including people's cultural or nationalistic behaviours or how they present themselves within that, and there was a specific bit about making misogyny a hate crime. I think that the advice was that that should be included. What is the rationale for those categories not coming in?

Mr Michael McAvoy (Department of Justice): I am happy to take that question, Emma. It is about introducing the statutory aggravator and starting with the four existing protected groups, and you will be aware from the details provided on the provisions that there is a second provision to introduce additional protected groups through secondary legislation at a later date. You are aware that the hate crime provisions are going in to a mixture of the sentencing Bill and the victims of crime Bill, and that is because we did not have the time in this mandate to bring forward a stand-alone hate crime Bill. It is about getting the statutory aggravator model on the statute books to start with and starting with the four protected groups and then seeking a power to introduce additional protected groups through secondary legislation at a later stage.

Ms Sheerin: Will that not require primary legislation?

Mr McAvoy: If the provision in the sentencing Bill succeeds, it will give a power to introduce additional groups through secondary legislation, subject to positive resolution.

Ms Sheerin: OK. The Minister previously talked positively about the inclusion of sectarianism in that broader definition. Are you saying that those things have been omitted because of timing pressures?

Mr McAvoy: It is about timing but also because there is a bit more work to be done on that. We have looked at other jurisdictions to get the policy work and the consultation done and to bring forward an aggravator referencing sectarianism, but time did not permit us to do that. As I said, we are starting with the four existing protected groups and seeking a power to add to that at a later date, when thought has gone into a policy on what other groups it might be appropriate to add.

Ms Sheerin: OK. As part of that, going back to misogyny and future-proofing this and looking at the strategy on ending violence against women and girls, we hope that the strategies and legislation will complement each other. Is it your hope that that element could be added later?

Mr McAvoy: It is fair to reflect the Minister's view that misogyny be looked at not as a hate crime but separately as a particular offence. We looked at sex as a potential protected group. The truth of the matter was that there was not a lot of evidence that people were motivated to assault or attack someone purely out of hostility or hatred driven by the fact that they hate that person purely because they are a woman or because they are a man. There are not a lot of crimes that are based purely on hostility driven by the aggravating factor of hatred of someone purely because of their gender. There have been incidents — I can quote some — where that was a very obvious motivating factor, but it was not as prevalent when we looked into it.

Ms Sheerin: Where is that evidence coming from?

Mr McAvoy: Again, we reflected on the work that Judge Desmond Marrinan did, and we looked at crime types and stats to see whether we could identify incidents, because, sometimes, those are informative as part of the policy development process. Getting evidence of a range of incidents and crime stats that demonstrates that the aggravation was purely motivated by hate for somebody because of their gender was not as prevalent or as obvious to us as perhaps we might have thought when we started that work. That is part of the phase-2 consultation and policy work for additional provisions. You will appreciate that we are only implementing additional foundational provisions, as the Minister refers to them, to modernise hate crime legislation, but lots of further work is needed, and that is one area that we will want to explore in more detail.

Ms Sheerin: Forgive me because this is from a number of years ago, but I remember that, at the time of the Marrinan review, I was engaged in the bill of rights process here. We looked at the issue extensively, and, from my recollection, misogyny received a focus. To say that people are not being attacked because they are a woman flies in the face of everything that we see around misogyny.

Mr McAvoy: Misogyny takes on different forms and behaviours. I am talking about hate crime and about hostility motivated, if I attack you, purely because I hate women. That is not as prevalent a feature, in our experience, but we will come back to that. Sex is one of the groups that could be added at a later stage.

Ms Sheerin: I have an issue with that, because, to carry out any of those crimes, the prerequisite is that you devalue, dehumanise and hate women. That is the basis of it, and it has been its normalisation that allows us to have the history that we have on gender-based violence here.

I know that there had been a conversation around looking at gender and including trans people in that, and that has not come to pass either. Is that still in the mix?

Mr McAvoy: Yes. Age, sex and transgender identity are three typical groups that could be added at a later stage, subject to securing the provision to add protected groups at a later stage through secondary legislation.

Ms Sheerin: That is dependent on that being passed as part of the Bill.

Mr McAvoy: The proposition is to get the statutory aggravator model up and running and potentially add additional characteristics and protected groups at a later stage. That is the proposition in the Bill as it sits.

Ms Sheerin: With the part around sentencing for crimes against vulnerable victims in mind, what constitutes vulnerability at present, on the basis of your understanding of how this will play out?

Ms Bell: Vulnerable victims will include children and anybody whose ability to protect themselves —

Ms Sheerin: Is hampered.

Ms Bell: — is hampered by reason of various characteristics.

Ms Sheerin: OK.

Ms Egan: I want to ask about Charlotte's law. It is important that we make progress on that, and we have to pay tribute to the campaigners, Charlotte Murray and Lisa Dorrian's families, for pushing it through. How has the Department engaged with those families and the people campaigning for Charlotte's law? How does it compare with Helen's law? Does it go further? How will aspects of that be incorporated? How do the people who have been pushing for that, including the families of victims, feel about the statutory reduction if a disclosure is made post sentencing?

Ms Bell: You may remember that, shortly after Johnny Miller was convicted and sentenced, Charlotte's family began a campaign that sought to introduce provisions here similar to Helen's law. There was an Assembly motion and a lengthy debate about that, on the back of which we undertook to look beyond Helen's law. When Helen McCourt's murderer was being released at the end of his life sentence, her mother started the campaign for Helen's law, which was to seek that the parole commissioners would not release him at the point at which he could be released. The situation is different in the Charlotte Murray case: Johnny Miller had just been sentenced, so there would be a 16-year period before Helen's law could have any impact. As I said to Mr Beattie, we thought that it was important to create a series of measures to encourage disclosure right from the beginning, when somebody is questioned by the police.

We got in touch directly with the families. We met them face to face and started a process of engagement with them that has gone on ever since. We have had quite a number of meetings directly with them in which we developed the ideas and thinking behind the proposals that are now in the Bill. As I mentioned, Helen's law really kicks in only at the end of the sentence, when the person is being considered for release, whereas Charlotte's law tries to address the issue much earlier in the process and on an ongoing basis.

Ms Egan: That is positive.

Another aspect of the Bill is about causing death or serious injury by dangerous driving. I think that everybody wants to see progress on that. I particularly think of Jaidyn Rice, a 16-year-old who was killed in the summer. How have you engaged with families who have lost their loved ones because of dangerous driving? There are disqualification periods for people who cause death or serious injury through dangerous driving while under the influence of drink or drugs. Was the inclusion of mobile phones considered in that regard?

Ms Sheehan: I will deal with the last question first. Mobile phones were not considered in that regard. Using a mobile phone could well be an element of dangerous driving, depending on the driving in question that results in an accident and the evidence that is then collated, because it causes people to fall well below the standard expected of a reasonable driver. That is part of the test for dangerous driving. We focused on those about which a commitment was made to include in the sentencing review.

You asked about engagement. I am sure that members are aware of a number of families who have been in the media. The parents of Enda Dolan, Martin Gallagher and Lesley-Ann McCarragher all engaged with us during the review. The Minister has met them regularly. We very much involved them, and, when we reached conclusions with the Minister about what we would propose in the Bill, we took time to explain that to them, because it is not exactly the same as what was being talked about in England and Wales. We wanted to ascertain their view but also to gain their understanding and acceptance. They are supportive of what we propose, because, I think, of what one sees when one looks at what has happened every other time.

Each time the penalty for that increased — from five years to 10 years and then from 10 years to 14 years — the senior appellant court in each jurisdiction considered how that impacted on the four categories of culpability that play into the range of sentencing that the sentencer should be considering. The difficulty that we perceived was that, if we went, as England and Wales did, to a discretionary life sentence, when you put that in the context of the Criminal Justice (Northern Ireland) Order 2008 — for England and Wales, it is the Criminal Justice Act 2003 — there is a staggered approach when it is discretionary life. The sentencer must first consider whether it should be life because that is the maximum penalty or whether there is another sentence that it could be. Judicial precedent states that life should be used for only the most odious, serious and grave elements of whatever offence carries discretionary life, and lots of offences carry discretionary life as the maximum.

We felt that, if we went to a fixed term first of all for that offence, we would get the same exercise carried out by the appellant courts. They would review the existing ranges, which would be those in the Stewart case in 2017; ranges from when they configured the previous McCartney guideline, which was done when it went from 10 years. Therefore, we did an exercise to project how that might look. If a repeat offender comes along who will be vulnerable to discretionary life, the sentencer will look at the reconfigured sentence ranging for offenders carrying 20 years and will probably rely on that for what the tariff on the discretionary life should be. Otherwise, we would not have a new guideline. We would be sitting with the Stewart ones, which are based on 14 years, and is that what the sentencer would look at because that would be the latest available guideline?

All the families bought into and accepted that. They could see that there was a certain sense and rationality to it. Experience shows that having some idea of the ranges helps the family, before it even goes in, if they have that opportunity to have it explained to them. We think that that is a better solution than going immediately to discretionary life.

Mr Kingston: Thank you for your attendance. I look forward to the Bill, and we hope that it will help with consistency in justice, public confidence and deterrence.

In your consultation, did you engage with the relevant authorities, such as the Police Service, the Courts and Tribunals Service and the judiciary, to ensure that the Bill will be as complete as possible and fit for purpose?

Mr Dawson: There has been a wide range of consultation and engagement right across the justice family. We had a good look at the potential costings of some of the provisions in the Bill, and, on the whole, we think that they can be dealt with from existing resources. The big exception to that is maybe the community sentencing provisions, where there will be additional costs. We are working through the detail of the potential costs of those with our financial colleagues. That will require more investment in the Probation Board, so we have engaged initially with it and will continue to do so. With regard to the judiciary, we have had discussions with the Lady Chief Justice's office.

Ms Bell: We had a fulsome range of pre-consultation engagement events that focused on each element of what would be in the consultation. We had public events, focus groups and one-to-one meetings with victims' families. We have consulted extensively across the piece. The Lady Chief Justice gave a presentation on sentencing at Ulster University earlier this year and referenced the proposed Bill in positive terms.

Mr Kingston: That is good. One could imagine that you might get some pushback from the judiciary, but, on the whole, you would say —.

Ms Bell: On the whole, it has been welcomed. We do not think that there has been significant fettering of judicial discretion, which would obviously be a concern for the Lady Chief Justice.

Mr Kingston: The whole point is to have consistency and to meet concerns of unduly lenient sentencing. Thank you.

The Chairperson (Mr Frew): On that point, what has the Northern Ireland Human Rights Commission said?

Ms Bell: I met the commission yesterday to discuss the Bill and give it an overview of everything that we plan to do. It did not raise particular concerns. Previously, I have discussed the Charlotte's law provisions in more detail with the commission, and, again, no particular issues were raised. We have also been liaising closely with our colleagues in the Departmental Solicitor's Office, who will ultimately provide the competence advice.

The Chairperson (Mr Frew): What about the Commissioner Designate for Victims of Crime?

Ms Bell: She has been involved along the way as well. Interestingly, she was part of our original reference group when we started the review back in 2017 or 2018. She has been closely involved.

The Chairperson (Mr Frew): What are her views on victims' personal statements being used and on access to sentencing remarks?

Mr Dawson: We have not dealt with personal statements in the sentencing Bill. We will look at them separately to consider their efficacy and how they will work in practice.

What was the other point that you mentioned?

The Chairperson (Mr Frew): Access to sentencing remarks.

Mr Dawson: Yes. The long-term intention is that there will be access to sentencing remarks.

The Chairperson (Mr Frew): How will we achieve that, if it is not through statute?

Mr Dawson: It will be through statute in due course but not through this vehicle. Legislation will be needed, and that will be tied up with the broadcasting provisions that will probably be brought forward.

Ms Bell: It will also be taken forward as part of the victims and witnesses strategy.

The Chairperson (Mr Frew): Right, OK. It might be in that Bill, then.

Ms Bell: I would not like to say. [Laughter.]

The Chairperson (Mr Frew): It is hot off the press, maybe.

Ms Ferguson: I have just a few questions, particularly on the offence of:

I would like clarity on how "service to the public" is defined and what criteria will be used to determine that. Will the Bill or guidance include specific reference to retail workers? The Minister gave a commitment to do that.

Ms Bell: Widening the offence to cover not just the emergency services, as originally intended, but any person providing a public service was largely driven by the retail sector's campaign. The Minister also heard a lot of concerns from people working in public transport, and the Law Society approached us about solicitors. A range of people who provide a service to the public seem to have become fair game for assault, and the Minister is unhappy about that. Her intention, therefore, is that the provision will be as wide as possible to capture all occasions when a person, in the course of their work, is the subject of an assault.

Ms Ferguson: By not being prescriptive, it covers nearly everybody who is front-facing.

Mr Dawson: We have thought in detail about whether there could be a list, and we have rejected that idea. First, we could easily miss out an occupation, and, secondly, new occupations are being created all the time, so the list would have to be constantly updated. For example, there are obvious public-facing workers, such as the emergency services; Health and Social Care staff; retail workers, as you said; and public transport workers. There are also people that you may not automatically think of. There were reports in the press during the summer about broadband workers. People who are going to homes to install broadband are potentially victims of assault. Under the terms of the legislation, the broadband engineer who is assaulted is providing a service to the public and, therefore, that would be within its scope. There are the obvious ones, and then there are the ones that you need to think about a bit more.

Ms Ferguson: Likewise, volunteers working in community and voluntary organisations are delivering a service to the public: will they be included?

Ms Bell: There will be a specific provision saying that it will not matter whether they are paid or not paid.

Ms Ferguson: That is useful. Thank you for that.

Will the sentencing Bill take into account the new offence or aggravating factor that the planned deepfake amendment to the Justice Bill is proposing? Are each of the proposed Bills interrelated, and are they being taken into consideration? We are looking at deepfake issue now in the Justice Bill. Will that be considered in this Bill?

Mr Dawson: We will certainly look at it. We are finishing our instructions on the deepfake amendments, so we will certainly make sure that both provisions are compatible.

Ms Ferguson: I want to follow up on the Chair's point. I am really interested in the consideration of and the reason why, at this moment in time, victims' personal statements and access to sentencing remarks are not included in the Bill. It would be really useful to get more in-depth detail on the reason for that.

Finally, I am concerned about protected groups. I want to go back to Michael's point on that, particularly the fact that the evidence suggests that the numbers on gender are quite small. I would really love to be privy to that information, because, from my perspective, it is a huge issue in general and for anybody I speak to. Likewise, was online hate crime taken into consideration, particularly in relation to gender? It affects a huge group. I would prefer to see it included as one of the protected groups rather than being left to secondary legislation. Can the grounds for why it has not been included in the Bill be looked at again?

Mr Dawson: I will start off with the transcripts of the sentencing hearing remarks. We have been looking at that and working with colleagues across a number of organisations to consider options for providing victims with access to transcripts of the sentencing remarks. We are undertaking some work on costs and delivery mechanisms for that. To be honest, we are not ready to put those provisions in the Bill. We need to do further work under the auspices of the victims and witnesses of crime strategy, for example. I am being honest and levelling with you: further work is needed. They are not ready to be included in the Bill, and the same probably applies to victims' statements.

Ms Bell: What is the issue with victims' personal statements?

Ms Ferguson: I know that the Victims' Commissioner has done extensive work with people, and it is a huge area for victims, particularly women, who have been subject to domestic violence and have been going through the courts. The Victims' Commissioner would recommend having access to victims' personal statements and to the sentencing remarks. Given that it is a huge area and the Victims' Commissioner has identified it, I am concerned about why it has been omitted from the sentencing Bill.

Ms Bell: As Andrew said, the victims and witnesses of crime strategy is looking after those issues, more than we are. As far as the victims' personal statements are concerned, there had been an issue with people wanting to be able to read them out in court. I think that it has been clarified that they are entitled to do that if the court gives its authority. Otherwise, the victims' personal statements are considered by the court before sentencing.

My understanding was that the issue was about victims wanting to have their voices heard in court, which is something that is not not allowed; it certainly can be allowed. Colleagues in the victims and witnesses team are looking at it.

Mr Dawson: We are happy to take a more definitive view and come back to you in writing about that.

Ms Ferguson: Definitely. I would appreciate that. Thank you.

Mr McAvoy: If it is helpful, I am happy to write to the Committee to provide some more information. In the example that I referred to, I think that we were maybe talking at cross purposes. If someone is clearly motivated by hostility towards another person because of their sexual orientation and then assaults them, that is obvious. However, we looked at the figures on the crimes that were committed and got down to a relatively small number of serious incidents. You may remember the case in which someone rode around Belfast on a bicycle, got off the bike and stabbed a woman. He was riding along the street path, 10 men were there, but he got off his bike and stabbed a woman. Clearly, there was an aggravation there that was driven by hatred for women. However, there were not many incidents that were as clear-cut as that. If it is helpful to the Committee, I will happily share some of the thinking that went into that.

The Chairperson (Mr Frew): Yes.

Ms Ferguson: It would be really useful if you looked at evidence in other jurisdictions, particularly for online hate crime that is gender-specific, and at the trends elsewhere.

The Chairperson (Mr Frew): I will bring you back to the assault on public workers. I changed the law in 2016 to bring ambulance workers who were assaulted into line with firefighters and police officers. I remember that time well. There was a sentence of up to six months and then two years on indictment. This sentence is 12 months' imprisonment on summary conviction and two years on indictment. Why has the two years not really moved? Maybe there is a valid reason for that, but what then happens to those three specific classes of workers and the law on assaulting them? Do they automatically fall into this category, or will we need to amend those specific assaults to bring them up?

Ms Bell: Provided that we do not lose anything, our intention is to revoke those three existing assault offences, and they will then all be included in this new, all-encompassing category. The offence of assault on the police includes resisting a police officer. We need to make sure that we do not lose anything, but the intention is that that new offence will be applicable to all. The reason, obviously, is that there will be a higher maximum in the Magistrates' Court. As you point out correctly, we are keeping the same maximum on indictment. The reason for that is that, when we looked at the figures of the convictions that were being given, we saw that there were not really any examples of the two-year sentence being given, so there did not appear to be a problem with that. However, in the Magistrates' Court, quite a number of the six-month sentences were being given. It is unusual for the maximum to be given in any case. Therefore, that identified an issue, and that is why we increased at the Magistrates' Court level.

The Chairperson (Mr Frew): This is a bit like Doug's point about non-fatal strangulation. Are we sure that the cases are going to the right court?

Ms Bell: It is for the PPS to decide, on the facts of each case, which will be the correct court. Obviously, as Andrew said, this offence is really at the common assault level, which is at the lower end of the offences against the person. As you can tell from the paper, if a more serious offence is being charged, the fact that the victim is a public worker will then become an aggravating offence.

The Chairperson (Mr Frew): I get the reasons for having the new offence of assault on public workers, and we all support it. If you are going to produce a list, you should produce a list of the people whom it does not affect. It will affect the nurse in the emergency department: will it affect the cleaner?

Ms Bell: It could do.

Mr Dawson: I see the cleaner who is employed by Health and Social Care as someone who is providing a service to the public.

The Chairperson (Mr Frew): OK. What about a social worker going into a domestic setting?

Ms Bell: Yes.

The Chairperson (Mr Frew): An electrician going into a domestic setting?

Ms Bell: Yes.

The Chairperson (Mr Frew): Even if they do not work for the Government?

Ms Bell: They are providing a service to the public.

The Chairperson (Mr Frew): What about if you are a cleaner or a doctor and you are walking through the accident and emergency department to get to your car after your shift has finished?

Ms Bell: The intention is that it will apply only in the course of your work.

The Chairperson (Mr Frew): At work. OK.

Ms Bell: It is to protect people when they provide that service.

The Chairperson (Mr Frew): The reason why I feel that the ambulance workers have to be on par with police and firefighters is that they perform a function that protects life or keeps people healthy, and you cannot say the same for every public worker. Should there not be an elevated level for people who perform a service that protects the sanctity of life?

Ms Bell: I absolutely appreciate your point, but the Minister was not keen on creating a complicated hierarchy of victims. She felt that, if somebody is at work and is subjected to some kind of attack, they need to be protected and that that is the same across the board. There are, however, cases, such as those that Andrew mentioned, that much more obviously fall into those categories. The same applies to anybody when they go to work: they should not be in fear.

The Chairperson (Mr Frew): My point is that you can perform a public service, but those special people perform a service that can save a life. If they are out of commission because they have been assaulted and have themselves become a casualty, they cannot perform that function, and, somewhere along the line, someone could die as a result. With all due respect, you cannot say the same for a shopworker.

Ms Bell: The other point to make is that, when a case gets to court, the court will consider the facts of the case and may treat that kind of thing as being more aggravating.

The Chairperson (Mr Frew): OK. The Department undertook a consultation on sentence reduction for guilty pleas. You also recently consulted on proposals to increase the existing maximum sentences for the offence of causing or allowing a child or vulnerable adult to die or suffer serious physical harm. Why is the product of that consultation not in the Bill?

Mr Dawson: I cannot speak to the second matter, unfortunately. We will have to come back to you on that.

Ms Bell: I can give you some information on that. The offence of causing a child to die was not included in this consultation, because colleagues in the Department took it forward at a time when a lot of the preparatory work for the Bill had already been completed. It was not the original intention for the Bill to deal with penalties for specific offences, although, having said that, I accept that we did so on offences causing death by driving. The intention of the Bill is more to do with sentencing policy, so overall, it was considered preferable that the provision on causing the death of a child be carried elsewhere.

Mr Dawson: On the early guilty pleas, it is simply the case that that has taken us some time, because the same small team that has been producing the Bill and preparing for the sentencing review is also responsible for analysing the consultation responses for early guilty pleas. We simply ran out of time. We will seek to publish the response to the consultation on early guilty pleas soon, but I will put my cards on the table and say that we simply ran out of time.

The Chairperson (Mr Frew): Do the Department or the Minister intend to include any amendments to the Bill as with the experience that we have suffered with the Justice Bill?

Mr Dawson: At the moment, as far as I know, the Minister does not intend to make any amendments to the Bill. The intention is that we will provide you with a clean version of the Bill for introduction in January. We had a slight delay on a couple of issues, and we briefly considered whether we should go ahead and introduce the Bill and bring amendments in the future, but we thought that we had better make a clean break of it.

The Chairperson (Mr Frew): I suggest that that is not necessarily a bad thing. The Committee may well suggest something that the Department should bring in by way of amendment. What I do not want to see is half a Bill at Second Reading.

Mr Dawson: That will not be the case with this Bill. We have been working exceptionally hard to give you a Bill that is complete and accurate and that, on introduction, will deal with all the issues that we said it would deal with.

The Chairperson (Mr Frew): In the very last line of your summary of the proposed content of the Bill, you wrote:

This is coming from my cynical mind, but what does that mean?

Mr Dawson: That is the sentencing guidance provision that we are drafting and finalising. That is essentially what we have discussed, Máire.

Ms Sheehan: As you can imagine, quite a bit of toing and froing occurs when something is not in legislation but there is an awful lot of judicial precedent in the background. In most of what are called "Court of Appeal sentencing guidelines", the judgement does not refer to them as "guidelines". They have maybe started doing that recently in some cases, but there is very little of it. Those cases are identified subsequently as having been delivered. Anybody in the court might not know which part of it was guidance and which part was obiter dicta or ratio decidendi. There is a complication in being based on judicial precedent.

First, it is not just about what is a guideline, who is giving it, when it is given and its being known that it is a guideline at the time that that happens. We are proposing something like a free-standing power to the Court of Appeal to do so. One of the big complaints at times, even in the Lady Chief Justice's sentencing group report work, is that they have to wait for a suitable case to come before them in order to even get the opportunity to review an earlier guideline.

On the other side of it is raising public awareness about those guidelines. We had engagement with retail workers, and it was a big surprise to them to find out that there is a guideline about the inclusion of an aggravating factor in the case of shopworkers. Similarly, we have had communications that would indicate that, sometimes, even those who work in the legal game may not be aware of the guidelines. We hope that part of that area of work in, shall we say, profiling or raising that awareness will be resolved through some administrative discussion with the Lady Chief Justice's office. That is well signposted on the Judiciary NI website and has been since we first started to prepare for the consultation. Some of the to and fro with the office about the work of the Lady Chief Justice's steering group is reflected now in a higher profile for where the sentencing guidelines can be found and where the Magistrates' Courts' guidelines are. That is for the users, as in the legal profession and the judiciary.

The important thing, however, is that some of the feedback that we got from the consultation was that members of the public who are in the court would like to know what is happening and why so they have some understanding of it. More important, victims really want to understand what they could expect to happen and whether they were satisfied that justice had been done. Part of that is about referring to a guideline, if it is relevant. There are practice protocols that have been there since 2012 even for the Magistrates' Court, saying that the prosecution and defence should be prepared to refer the magistrate to the relevant guideline. Again, there needs to be some administrative discussion in order to see how we can improve. We do not need legislation to do that when there is a practice protocol. However, if it is not happening, we need to have discussions with other stakeholders to improve what I would call the "sentencing route" between all parties.

The Chairperson (Mr Frew): This is the last question from me. You have fallen short on Harper's law, which Angela and I discussed previously with an avid campaigner. Where are we with Harper's law?

Mr Dawson: Harper's law will be part of the new review of sentencing policy that will be announced before the end of the year. We had intended to launch the review at the same time as we introduced the Bill, but we will do so in line with the planned timescale, before the end of this calendar year, and it will include Harper's law. Is there anything to add to that?

Mr McAvoy: That is as much as we can say today on Harper's law.

The Chairperson (Mr Frew): OK. No problem. Thank you. No other members want to come in, so that leaves me to thank you for your time and for answering our questions. It has been helpful and useful. Thank you very much.