Official Report: Minutes of Evidence

The Deputy Chairperson (Ms Sheerin): I welcome Michael Agnew, deputy director of public prosecutions; Richard Scullion, head of policy and information; and Cathy McGalie, principal public prosecutor, policy and information unit, all from the Public Prosecution Service (PPS). Thank you all for taking the time to present to the Committee today. I invite you to make an opening statement.

Mr Michael Agnew (Public Prosecution Service): Thank you very much, Deputy Chair. As you said, I am the deputy director. I am here today with Dr Richard Scullion, who leads our policy and information unit, and Ms Cathy McGalie, who is a principal public prosecutor with that unit. We are grateful to the Committee for the opportunity to contribute to your scrutiny of the Criminal Justice (Sentencing etc) Bill, which is a substantial and significant piece of legislation that covers several important areas of sentencing law.

We are aware that the Committee has been discussing issues involving difficult policy judgements, particularly hate crime. We thought, perhaps, that we could add greatest value by providing some observations relating to the operational consequences of certain parts of the Bill. To that end, I propose to focus my opening remarks, first, on the provisions that relate to life sentences for murder and the determination of tariffs; secondly, the duty to follow sentencing guidance; and thirdly, the proposed statutory aggravator that is based on vulnerability.

I will take each of those briefly in turn, the first being the determination of tariffs in murder cases. The Committee has received our addendum submission, which sets out the current approach to the setting of tariffs, as established through judgements of the Court of Appeal, and explains how the Bill would represent, in our view, a significant change.

We have highlighted how several of the factors that are listed in paragraph 1(2) of the proposed schedule A1 are currently associated with a starting point of 15 or 16 years. In the Bill, each would instead normally attract a starting point of 20 years. In our view, that has the potential to lead to a significant increase in the tariffs that the courts will set in murder cases. We have not identified any clear recognition in the material published to date that the Bill would have that effect. Therefore, we considered it important to ensure that the Committee fully understood that so that it can consider whether such an outcome is desirable.

We have also identified certain factors, specifically those at sub-paragraphs 1(2)(j) and (k), which do not feature in the current law, have no comparator in England and Wales and where views may reasonably differ as to whether they properly elevate the seriousness of a murder as such and that an enhanced starting point as appropriate. We have noted that it may make more sense for the factors in subparagraph 1(2) (j) and (k) to be combined into a single factor, as is the approach in England and Wales. In the Bill as drafted, the existence of a personal connection between offender and victim would, without more, normally lead to a 20-year starting point. It is important to understand that the definition of a personal connection is very broad and includes any members of the same family.

The second provision is the duty to follow sentencing guidance. The PPS recognises the importance of improving transparency and public confidence in sentencing. We also recognise that the existence of clear sentencing guidance, followed consistently, can assist in achieving that objective. Clause 2 requires the court to identify:

and to explain how it discharged its duty to follow that guidance. Sentencing guidance is defined in clause 2(4) and includes cases that are identified as guideline cases, as well as those that are not but which contain guidance that is relevant to the court's sentencing function.

There is a similar statutory duty in England and Wales to follow sentencing guidance, but the duty in that jurisdiction does not extend to the identification of the relevant guidance and an explanation as to how the court is discharging the duty to follow such guidance. Furthermore, in England and Wales, sentencing operates within a structured framework of formal guidelines issued by the Sentencing Council. That reduces reliance on individual authorities — by that I mean previous cases — and tends to support shorter and more accessible sentencing remarks. In the absence of an equivalent framework in this jurisdiction, it seems to us that there is a risk that the provision may have the opposite of the intended effect. In particular, it may encourage increased citation of authority, leading to longer sentencing remarks and potentially creating additional grounds of appeal as to what guidance is relevant in any given case.

Given the way in which sentencing guidance has developed in this jurisdiction, some uncertainty as to relevance is likely to persist. It may, therefore, be helpful to consider what further steps might be taken to give judges and practitioners greater certainty as to what judgements are properly to be considered guideline judgements.

Finally, it occurred to us recently, subsequent to our written submission, that the provisions imposing duties on the court in relation to sentencing guidance appear to apply in the Crown Court and the Magistrates' Court. Moreover, we understand that the current Magistrates' Court sentencing guidelines are issued by the Lady Chief Justice's sentencing group and therefore fall within the statutory definition of "sentencing guidance". That being the case, the Magistrates' Court would in every case be required to identify the relevant guidance and explain how it has been followed. Currently, in the vast majority of cases, sentences are passed without such explanation, so the change will dramatically alter sentencing practice in the Magistrates' Court and could have a significant impact on the efficiency of that court.

The third key area is the provision for "Aggravation by reason of vulnerability". We understand that that developed from a proposal for an age-based aggravator but has evolved into a broader statutory aggravator based on vulnerability. Vulnerability is already an important factor in sentencing and is routinely taken into account by the courts. The issue is therefore not its importance but whether a statutory aggravator is a practical and effective way of addressing it. We see a number of potential difficulties.

First, the proposed definition is very broad, particularly in its inclusion of vulnerability arising "for any other reason". That may create uncertainty for investigators and prosecutors about when the aggravator should be applied. It appears that, if the prosecution does not apply the vulnerability aggravator to a charge at the outset of a case, the court may be prevented from taking vulnerability into account when sentencing. That would be extremely unfortunate, particularly in a case in which the nature or extent of vulnerability becomes apparent only over the course of the proceedings.

Secondly, vulnerability is inherently subjective. Victims may not identify as vulnerable or may disagree with decisions taken by the prosecution on whether to apply the aggravator, which may give rise to distress.

Thirdly, unlike many existing statutory aggravators, vulnerability may depend on matters that are removed from the circumstances of the offence and which may be complex to prove by evidence. Formally relying on it may raise disclosure issues, particularly where personal information about the victim is involved and disclosure is potentially intrusive.

Fourthly, the attachment of a statutory aggravator is likely to make cases more difficult to resolve. Experience suggests that defendants are less likely to plead guilty where an aggravator is an issue, which may lead to more contested hearings. There is potential for multiple aggravators to apply in certain cases, which would compound the potential problems.

Fifthly, the breadth of definition risks limiting the practical value of the aggravator. What the presence of such an aggravator signifies may not be clear in any given case.

Sixthly, while the definition is broad, the statutory aggravator appears to create thresholds that may be difficult to satisfy. For example, it requires the victim's ability to protect themselves to be "significantly impaired". It also requires the prosecution to prove that the defendant knew, or ought to have known, about the vulnerability. Courts currently have considerable flexibility in their approach to vulnerability when dealing with it as an aggravating factor for the purpose of sentencing. We are concerned that the introduction of a statutory aggravator in the proposed form might add complexity and create operational problems without necessarily improving clarity or outcomes.

I will conclude with three brief observations on other aspects of the Bill. First, we support the extension of the unduly lenient sentencing scheme to all Crown Court sentences. There are several reasons why the extension of that power to the Magistrates' Court would not, in our view, be appropriate. Those include the limited scope for any successful referral from the Magistrates' Court, given the high threshold for achieving that; the potential resource implications; and the fact that the Magistrates' Court is a court of summary jurisdiction that is focused on speed and efficiency. It is not a court of record.

Secondly, we support the move to introduce a statutory aggravator for offences motivated by hostility. The existing enhanced sentencing model has not operated as effectively as intended, and a different approach is now justified.

Finally, we note the various provisions relating to public sector workers and the broad definition of "public worker" in the Bill. We understand that there is some concern about whether the definition is too wide and the aggravator would be better targeted at specified public workers where there is evidence of a particular concern. From an operational perspective, there could be cases in which the application of the aggravator is unclear, although that is much less likely than it would be in cases involving the vulnerability aggravator. Consideration should be given to how such offences are to be recorded on the criminal record so as to allow the identification of serial offenders, such as those with a history of assaulting police or other types of public worker.

I hope that my comments are of some assistance to the Committee. We are happy to take questions.

The Deputy Chairperson (Ms Sheerin): Thanks very much. I appreciate your coming here today and for providing your addendum paper. I want to start with something that you touched on in the addendum. At paragraph 14, you mention the tariffs for murder cases and express a concern about your initial understanding of what had been presented to the Committee, compared with what is now being presented. My reading is that you believe that there is a substantial difference between what was initially presented by the Department and what is being presented now.

Mr Agnew: No. As far as life sentences are concerned, my understanding of the Bill's purpose was that it would put the existing regime, to a large extent, in statutory form so that there would be greater transparency. The explanatory memorandum explains that objective. It refers to the Whitla case, which took the new normal starting point as 15 or 16 years, not 12 years. That was the objective. It referred to the fact that the factors listed in the Bill are taken from existing case law. I might have assumed, incorrectly, that it was intended to mirror the existing case law in terms of where the starting points may be. However, it was only when looking at it more closely and comparing the Bill with the existing case law, that I identified that six of the 11 factors that would previously have given a starting point of 15 or 16 years are now given a starting point of 20 years.

Since then, I have gone back over some of the materials to see whether I have missed something. Perhaps the Committee can point to something that I have not seen. I did not identify anything that indicated that a policy objective of the Bill was to address any issue with the sentences that the courts impose in murder cases and that there was an intention to raise tariffs for murder cases in many situations by, perhaps, five or six years.

The Deputy Chairperson (Ms Sheerin): Further to that, do you believe that there is a problem with the existing starting point of 15 years? Does there need to be a policy change?

Mr Agnew: No. Our organisation tends to remain fairly neutral on sentencing levels. There are value judgements to be made by the Assembly and the Executive. I have not heard or picked up anything in any of the discussions that there was a concern. The court will be familiar with the tariffs that were set in murder cases in recent months and years. One recent sentence was set at 31 years — everyone knows about that case. There are other cases in which sentences are regularly set in the 20s or the 30s. The Assembly's research paper, in fact, shows that the average tariff since 2020 varies between 17 years and 21 years.

We are very conscious of the issues concerning violence against women and girls and domestic violence, as is the Court of Appeal. It has sought to reflect the way in which society has moved on in how it sentences in those cases. We regularly see sentences of more than 20 years — when I say sentence, it is a life sentence, but the tariff is 20 years, and more in domestic violence cases. I had not identified any concern about the levels that were being set. However, I believe that the likely effect of the Bill is that tariffs will be noticeably higher.

The Deputy Chairperson (Ms Sheerin): Have you had discussions with the Department of Justice about that?

Mr Agnew: Yes. When I did my own analysis, I ran it past colleagues in the Department to check it. They confirmed that, in fact, it was their intent to raise the starting point in a number of situations in order to reflect societal changes. A number of the matters that have been moved from 15 years to 20 years are, perhaps, not things in which it is obvious that society has changed. Those might include murder for gain or murder to obstruct the ends of justice, for example. It is not absolutely clear what the connection is between the likes of —.

The Deputy Chairperson (Ms Sheerin): I do not want to draw you into giving a —. I get the sense that maybe you do not think that that policy change was necessary.

Mr Agnew: As I said, it is a matter for others to decide. I am not aware of any concern about the sentences that the Court of Appeal has been passing in murder cases.

The Deputy Chairperson (Ms Sheerin): OK, that is fine. Thanks. I will move to questions from members.

Mr Beattie: Michael, thank you very much for your brief, which was as insightful as ever. I have two questions. The first deals with clause 2, which seeks to impose a duty to follow guidance relevant to the case when sentencing. You talked about the Sentencing Council and will know that I am an advocate of having a sentencing council for Northern Ireland. What might be the benefits of having a sentencing council? Could it help with sentencing, better understanding and, particularly, public confidence?

Mr Agnew: I am aware that you are an advocate for that. The Department has previously run consultations on that, and there are different views on it. The senior judiciary is not so strongly supportive of it. There are also cost implications. Some of the discussion has been about whether a council like that is practical in a jurisdiction of this size. My view is that it is a lot easier for a member of the public to pick up a sentencing guideline, read it and see how a court will sentence in certain types of cases than to try to work that out from a lengthy legal judgement or collection of legal judgements.

It could enhance transparency. We have seen some examples of that with sentences in England and Wales. I will think of one. There was a suspended sentence in the Huw Edwards case. There was initially a strong reaction to that, but legal commentators quickly came out to explain how the court got to that ruling, with reference to a relevant sentencing guideline. People could then quite quickly see that that was not unusual or exceptional and that there was a clear route by which the court got there.

With guidelines in place, it is easier for the court to explain quickly to a victim or member of the public how it arrived at a sentence. There was an English Court of Appeal decision that discourages courts from over-citing other authorities, stating, "Just cut to the chase. Here is the guideline, apply it" — with a degree of flexibility, of course — "and show us how you got to the end point". A guideline could facilitate that better than a guideline judgement or a series of guideline judgements.

Mr Beattie: I get the point that you are making. I listened to the sentencing of Axel Rudakubana. Everybody was screaming for a whole-life sentence, but, when you listened to what the judge said, you could understand why he did not give a whole-life sentence.

If we were to go down the route of a sentencing council for Northern Ireland, it would not have to replicate what is in place in England and Wales or even in Scotland or the Republic of Ireland. The Public Prosecution Service could influence something that could work in a bespoke way for Northern Ireland.

Mr Agnew: The membership of the council, how it went about its work and who it must consult would be open to debate. There are different models. There is the model in England and Wales, and Scotland and the Republic of Ireland each has one. They are all a bit different but are generally made up of legal members and lay members, which brings a broader perspective. I cannot recall, but it may well be that the Director of Public Prosecutions for England and Wales is on it — do not hold me to that. We would certainly have the opportunity to provide some input, either through membership or consultation, potentially as a listed consultee.

I will make one other point on transparency and public understanding. A sentencing council can provide guidelines not just on appropriate sentences for individual cases but on sentencing process and aspects of the process such as guilty pleas and discount for early guilty pleas, which I know is another area that you are interested in. A council could provide an authoritative document that takes a member of the public through the general sentencing process from start to finish in a clear and accessible way. It could add to transparency.

Mr Beattie: Thank you. I will move to my second point. Having walked in the same direction as you on that point, I am now about to walk in an opposite direction on clause 23, which is unduly lenient sentences and the right of appeal. You believe that we stick with just the Crown Courts. There have been a few options, and you say stick with where it is for speed and efficiency. I am back to the issue of confidence, however, because we cannot appeal in the Magistrates' Court.

Without looking at that as a whole and saying that we should be able to appeal everything in the Magistrates' Court, what is your view regarding hybrid cases that could be tried in the Crown Court or the Magistrates' Court. If it is decided that they are tried in the Magistrates' Court, they cannot be appealed. Some of those cases are sexual assault, for example. Non-fatal strangulation is a hybrid case, as are upskirting and downblousing. If such a case goes to the Crown Court and somebody gets three months, that can challenged; if it goes to the Magistrates' Court and they get three months for the same thing, it cannot be challenged. Even though you are saying that we should not go to the Crown Court, do you think that we should for hybrid cases?

Mr Agnew: No, I do not. If hybrid cases are prosecuted in the Magistrates' Court, they will be dealing with the lower end, so we are seeing fewer and fewer non-fatal strangulation cases in the Magistrates' Court and more and more will be prosecuted in the Crown Court.

That mechanism, that safety net, is really to deal with more serious cases generally. I am not diminishing the seriousness of cases in the Magistrates' Court, but one has to draw a line somewhere, and the difference between the Crown Court jurisdiction and the Magistrates' Court jurisdiction is an appropriate place to draw the line.

I also note that the extension of the unduly lenient scheme to all Crown Court cases, whether indictable or hybrid, is further than our neighbouring jurisdictions have gone. England and Wales are kind of in the position where we were, which is indictable only in certain specified hybrids. I think that they had a consultation on sentencing recently and are considering adding a few more hybrid offences but not going as far as we are. As far at this jurisdiction is concerned, we have a more generous or broader scheme for unduly lenient than elsewhere.

There is another difficulty. I mentioned the Magistrates' Court not being a court of record. How sentencing works in the Magistrates' Court and how it works in the Crown Court is quite different regarding summary justice. In the Magistrates' Court, it is a lot more informal. In the Crown Court, everything is laid out a lot more on paper. There are citations of authority and detailed written submissions. The judge will often reserve judgement and give a carefully reasoned sentencing judgement. All that material can be available for the Court of Appeal to analyse carefully how the judgement was arrived at and whether there was a gross error of law in it or not. The Magistrates' Court does not really facilitate that because proceedings are not conducted in that way. It is not a court of record.

Mr Beattie: If you put it like that, Michael, my argument back to you is that that will damage public confidence if you are telling me that, in a Magistrates' Court, we do not go to the same level as we need to go to in the Crown Court. The very reason that we appeal against unduly lenient sentences is because we think that the judge made a mistake, so if we think that a judge made a mistake in a Magistrates' Court, it is the same principle, but we do not have the recourse to appeal. The reason for appeals is that we think that somebody got something wrong. However, you can get something wrong in a Magistrates' Court, yet there is nothing that we can do about it.

Mr Agnew: An unduly lenient reference is not an appeal. It is different from a defence appeal, and I do not mean that in a technical way. I also mean it in terms of the threshold involved. Nor it is just any mistake. It is there to correct gross errors that give rise to significant public concern. I do not say that that cannot happen in the Magistrates' Court, but it is a lot more likely to happen where there is a public interest in correcting something that has gone very badly wrong in a more serious case in a Crown Court than in a Magistrates' Court. It is about proportionality.

Mr Beattie: I have written to you often about unduly lenient sentences, and I have to be honest and say that I have always had comprehensive replies that explain things well. I have no issue with that and what you do. That is not what I am saying. However, I am following two cases of non-fatal strangulation at the minute, and both are going through the Magistrates' Court. We had a discussion about that, which was that most of those cases should be going through the Crown Court now because the sentencing threshold increased from two to three years.

Mr Agnew: Yes. The vast majority of those cases go through the Crown Court.

Mr Beattie: I am still following two cases that are not. You have answered the question; thank you.

Mr McGlone: Thank you very much for your presentation. I want to go back to the sentencing guidance and how that is done. We regularly see cases and wonder why the sentences are, on the face of it, lenient compared with others where the sentence was twice as long for a similar offence. How might the mechanism of a consistent approach work by way of guidance?

Mr Agnew: Under the current —?

Mr McGlone: No, under what might evolve.

Mr Agnew: What is set out in the Bill at the moment does not include the idea of a sentencing council. The court is required to follow any guideline judgements that may have been issued from the Court of Appeal, any that are identified as such or any that are not identified as such but which provide relevant guidance to the case before the court. That is not that different from what happens at the moment.

When the Crown Court is sentencing a case, there is a duty on both parties to present to the court anything relevant, by way of previous authorities. That will continue to take place, and, in its sentencing remarks, the court will usually refer, to some extent, to those previous authorities. In certain areas of law or types of offending, there may not be any guideline cases. That becomes a little bit trickier, and the court has less of a steer from the Court of Appeal.

Mr McGlone: That is where you are taking me. How can that be done better?

Mr Agnew: The way that the system works at the moment is that the Court of Appeal waits for an appropriate opportunity for a case to come before it. It will consider whether that case is an appropriate vehicle to provide guidance for future cases. The Department has been looking at that. Perhaps, in its next review, it will look into whether there is anything that can be done to facilitate the Court of Appeal giving guideline judgements more frequently or not necessarily having to wait for the appropriate case to arrive before it in order to do so.

There is, however, a fundamental difference between the Court of Appeal giving a guideline judgement that could provide a framework for some of the different types of cases where the starting points might be, and a guideline produced by sentencing council, which will tend to be more comprehensive, given the range of factors and considerations that arise.

Mr McGlone: If I am picking you up right, you can depend on a Court of Appeal judgement, which may or may not occur, and for which you might have a considerable wait, or you can depend on, for example, the Court of Appeal itself taking the initiative and issuing its own form of guidelines.

Mr Agnew: It cannot do that.

Mr McGlone: That is my point. Therefore, there is no alternative to a case coming before it.

Mr Agnew: Not at the moment.

Mr McGlone: Not at the moment. If it cannot and will not do it, and there is no catalyst in particular for that, other than a case coming before it, how do we get to the point of having a sentencing council?

Mr Agnew: A sentencing council would be created as a completely separate body.

Mr McGlone: I get that. Are you saying that, legislatively, a lever or an actionable body or methodology of ensuring that there is consistency of sentencing would be a sentencing council?

Mr Agnew: That is one of the main arguments put forward for a sentencing council.

Mr McGlone: That is grand. Thank you for that. In your earlier remarks, you mentioned the Magistrates' Courts and sentencing issues that could have a significant impact on the function of the courts. Can you expand on that?

Mr Agnew: I do not know whether you have been in the Magistrates' Court recently, but justice is necessarily dispensed with some speed. The sentencing that takes place at the moment is subject to Magistrates' Courts' sentencing guidelines, which are quite detailed and give broad ranges for different types of offences. Most of the time, however, a district judge who is dealing with a summary case is familiar with such cases and the appropriate sentences. A judge will announce, in fairly summary terms, what the outcome of the case is.

My understanding of the provision in the Bill is that there will be a duty on the district judge, not just to follow the sentencing guidelines that exist in the background but to state in open court that they are doing so and explain how they are discharging their duty to apply those guidelines.

It therefore seems to me that that will add layers of process and potentially —.

Mr McGlone: I have to stop you there for a wee minute. Why should that prove to add an existing layer of bureaucracy for a judge? If judges cannot explain the rationale behind their arriving at a determination, we have a bigger problem.

Mr Agnew: The vast majority of Magistrates' Court cases deal with speeding offences, assaults on police and so on. The judge gives a fine, a suspended sentence or whatever, and the sentencing remarks will generally be fairly brief.

Mr McGlone: Depending on the judge.

Mr Agnew: In my experience, they are. It not necessarily the case that there will not be some explanation involved, but sentencing remarks are usually more focused on the facts of the offence and on looking at a pre-sentence report and the person's criminal record. Those are the types of things involved. What may feature more regularly in sentencing remarks from a district judge are comments such as, "This sentence is in light of your previous convictions for x and y". Referring to guidelines and taking a slightly more formulaic or mechanistic approach to finding a pathway to an outcome through the mechanism of sentencing guidelines is not something that happens currently, and it would be an additional aspect to the Magistrates' Court process.

Mr McGlone: May I move on, please, to a very topical issue, which is hate crimes? I want to ask about the introduction of an aggravation scheme. Given the nature and composition of our health service, the two may even overlap. First, on hate crimes, we have had a heavy focus on race hate crimes in the past while. How could the courts best send out a very clear message that hate crimes of any sort are despicable and awful and that they will lean very heavily on such offenders?

My second question is about assaults on public workers. Are we talking about public-sector workers or public service workers? If "public workers" means the latter, that will make the definition much more broad and affect the decisions that may be taken by a judge in those circumstances. That could take us anywhere. It would therefore be helpful if you could give me a few insights, please.

Mr Agnew: Clause 33 deals with aggravation by hostility. You asked what we can do to increase public confidence and how sentencing deals with aggravation based on hostility. It is a good model, in the sense that the offence will be labelled up front as being aggravated by hostility. The current mechanism is a bit more nuanced, in that it is not on the face of the indictment or charge. Rather, the prosecutor will present the case as being aggravated by hostility, and the judge will make a finding. It should be an enhanced sentence, and that should be stated and recorded, but we know that that has not been happening as well as it should have been.

The provision will bring more formality and hopefully a bit more rigour and transparency to the whole process. The offence will be stated as such up front. It will be alleged as an aggravator on the face of the indictment or complaint. That will require the court to say that the offence is so aggravated and then say how the aggravation has affected the sentence given. That should have been happening to some extent already, but, hopefully, when we have the new provision, in which the offence is flagged up front in a more transparent way, we will get better compliance. The other thing that we will get is that the aggravation will be recorded on the person's criminal record. That does not happen currently.

Mr McGlone: Pardon me for interrupting, Michael. I mentioned this last week. One of the aggravating factors in the build-up to the commission of a crime can be posts online. I take it that such posts, if they are attributable to an individual, and that individual is responsible for either the organisation or the commission of a crime, can be looked into rigorously. Based on what someone has posted online, their motivation will be very obvious.

Mr Agnew: In certain circumstances, the motivation will be obvious from the circumstances of the offence. In other cases, online material such as a previous post can support the evidence for motivation. In some cases, if it stirs up hatred, the online post can be considered stand-alone offending. That can all be relevant to the aggravation offence and to any other offences.

You mentioned clause 37, which deals with assaults on public workers etc. As the Bill stands, the definition of "public workers" is very broad. I have identified five ways in which it is so. Under clause 37(3), it applies to workers who are:

Is your point about whether that applies to public service workers?

Mr McGlone: No. The intention of the provision at the start was to cover people who work in the health service, police officers, ambulance drivers and paramedics, and it expanded from there. How effective will it be without including specific designations of public-sector workers and public service workers? Would having a more loose definition of public service workers therefore be better? I am trying to nail it down in order to determine the most effective way in which a conviction can be secured.

Mr Agnew: Hopefully, in any event, we will secure a conviction for the underlying offence. An element of it is about labelling and about signalling to the public. The current definition is very broad, so it will potentially include somebody who provides any service or goods to the public, such as a delivery driver. The Bill will also repeal the existing offences that are specific to the assault offence, such as an assault on police. It therefore makes the offence much more generic. At the next evidence session, the police may have views on whether that is a good thing.

I do not want to advocate a particular approach, because we have had some engagement with the people who provide different types of public services, and I know the challenges that they face. One might wish to expand the scope of those who will receive the protection. By excluding certain workers, however, we are not seeking to downplay the impact of the offence against them. For many years, the law has had a specific offence for assaults on fire and rescue officers and police officers because they assume particular risks on behalf of the public that many other public service workers do not. The definitions of the murder tariffs make a distinction between police, fire and rescue officers and prison officers and other public service workers. There are therefore different approaches to the matter, and it will ultimately be for the Assembly to decide whether the offence should be broadened in the way that is currently proposed.

Mr McGlone: Thank you.

Ms Egan: Thank you for coming to the Committee today. I will follow on from what Patsy said about hate crime. Last week, the Northern Ireland Human Rights Commission told us quite clearly that the legislation needs a definition of "hate crime". What is the PPS's opinion on that? Would having such a definition strengthen the legislation?

Mr Agnew: There are two things to distinguish between. There are hate crimes and offences that are aggravated by hostility. As you know, there is no such offence as a hate crime. A hate crime is more of a means for the police to record incidents that are perceived by the victim to have been motivated by hate. It is a slightly broader definition, and there are more protected characteristics than there are in the current law. I am not sure what is meant by defining "hate crime" further in the legislation.

Ms Egan: Judge Marrinan's review recommended that there should be a firm definition of "hate crime", and we discussed that. It was an issue that came through very clearly last week, and I wondered whether the PPS had a view on defining it.

Mr Agnew: There needs to be clear definitions of the offences and matters that need to be proved, so there must be legal certainty, and we need to be able to apply the definitions properly. However, I do not see why a general descriptor of a type of crime requires a definition in legislation for the purposes of the criminal law.

Ms Egan: OK. Following on from that, you talked about how the Criminal Justice (Northern Ireland) Order 2004 does not have a mechanism for disclosing on a criminal record that a sentence was aggravated by such hostility. Will the Bill adequately address that?

Mr Agnew: Yes, my understanding is that that is part of it. Is that covered in the Bill? Yes. You make a fair point, which I had not considered. Clause 36(4) states that the court must:

and:

Therefore, the court recording that might involve a process that is separate from what actually appears on a criminal record. That might be for the purposes of the court's records or the order book or something. It may be that legislation on its own does not result in that aggravation appearing on a criminal record. We may need to give a little bit more consideration to that. Certainly, my understanding has been that that sentence should appear as a racially aggravated assault or whatever on a criminal record so that there is transparency.

Dr Richard Scullion (Public Prosecution Service): That recognises a gap that exists at the moment, so it needs to be there.

Ms Egan: OK. I am particularly interested in the comments that you made on vulnerability and how, given that it is quite broad, it might it be difficult to interpret. Correct me if I have picked this up wrongly, but you said in your remarks that you think that the courts can currently consider the vulnerability of victims. Will you talk a wee bit more about that and about how it has been adequately addressed already?

Mr Agnew: The courts deal with vulnerability as part of the sentencing process day in and day out. I do not think that there is any perceived gap there. Vulnerability can arise in a range of circumstances. I was looking at a case the other day in which vulnerability maybe arose from the circumstances in which the offender had isolated the victim from her friends and so on. That was treated as vulnerability, and I started to think, "Would that satisfy the test for vulnerability as laid down in this legislation?". At the minute, we do not have to allege vulnerability upfront. The case will take its course, and, if the defendant is convicted, there may be submissions in the Crown Court on the relevant aggravating factors, we would submit vulnerability and the court would weigh that up with all the aggravating factors. However, it would not usually single out vulnerability in terms of how it affects the sentence, so the court might take a starting point and say, "These are the aggravating factors, one of which is vulnerability, so I am going to increase the sentence from six years to eight years". At the minute, that is not really an area of the law or a practice that is giving rise to any operational difficulties. It seems to work well. It does not really attract any particular challenge from the defence, and there is considerable flexibility in what the court will find vulnerable and in the material that it will rely on to make that finding.

By making vulnerability an aggravator, you are putting it up there at the outset of the case as something that the prosecution has to evidence and prove beyond reasonable doubt. You are drawing more attention to vulnerability not just for the outcome but in enabling the defendant and the defendant's legal team to think, "Well, they are trying to add vulnerability, so is there any way that we can get it knocked off or find a way to challenge that evidence to ensure that the prosecution does not come up with proof about it?". Part of my concern is about the thresholds that are involved in that. The onus is on the prosecution to prove that it is beyond reasonable doubt and that there is substantial impairment. A mens rea element of it also has to be proved, which means that the defendant knew or ought to have known about the vulnerability. Potentially, that brings in a lot of additional scrutiny of and factors for proving vulnerability that we do not really have in place at the minute, and I am not sure that that will result in better outcomes for victims.

Ms Egan: That is grand. Thank you.

Mr Kingston: Thank you for your answers so far. Michael, there might be some repetition in my questions, but I am trying to understand this. Clause 2 is on the duty to follow sentencing guidelines. It sounds like a good thing that there should be public understanding of where our sentences come from and of the fact that they are not just pulled out of a hat like a surprise. It should be understood that sentences follow guidance, and there should be consistency in sentencing. That sounds positive. I think you said that that normally happens to some extent.

Mr Agnew: Exactly.

Mr Kingston: The only negative that you threw up is that it would take longer.

Mr Agnew: There are two aspects to that that cause me some concern. The first is the fact that it applies to the Magistrates' Court and the Crown Court. The idea that it would take longer is a point that I make about the Magistrates' Court.

Mr Kingston: Is that because it has a higher volume of cases?

Mr Agnew: It has a higher volume of cases, but the reason is that current sentencing practice in the Magistrates' Court is short, sharp and to the point.

Mr Kingston: Is it more standardised?

Mr Agnew: Yes, it is more standardised and less legalistic. It is probably less complicated and less requiring of explanation, although that may be a slightly inelegant way of putting it. The fact that it applies to the Magistrates' Court is one concern.

I have only one concern about the Crown Court. This happens to some extent, so it is still quite a subtle point, but the court is required to identify guideline judgements. Part of the problem arises from the fact that, at the minute, there is sometimes a lack of clarity on what is a sentencing guideline judgement. More recently, the Court of Appeal has been quite clear sometimes in saying, "This is a sentencing guideline judgement". Sometimes, there is even a heading on the case that says, "Guideline in relation to sentencing for x and y". However, historically, some cases in which the court has not said that have become known as guideline judgements.

The Lady Chief Justice's sentencing group has done some work on identifying the cases that should be guideline judgements, but some of the prosecution counsel who do some work for us advise me that there is still an element of ambiguity at times around the previous cases that should properly be considered as guideline judgements. The fact that there would now be a statutory duty on the court brings a sharper focus on the challenges that that might present and the risks if the court were to get it wrong or the potential for the prosecution and defence to disagree on whether a case is a guideline judgement. All that could become a bit of a distraction in that everyone is focused on complying with the statutory duty in circumstances that are quite difficult and in which there may be grey areas.

As I said, with a sentencing guideline from the council, there would be no grey areas, because it would be quite clear that that is what you follow and apply. The way that our sentencing law has evolved over the years means that there are some grey areas, and that could result in a bit of a distraction. That is not what we want. We want less discussion than in previous cases and shorter, more accessible sentencing judgements that do not necessarily involve the judge going through all the cases that the different parties have argued are sentencing guidelines and potentially trying to explain why he has or has not agreed with the submission from either party. We could see the defence appealing that and saying, "The judge was wrong to say that it was not a sentencing guideline", or, "A particular Court of Appeal judgement did not contain guidance that was relevant to the court's sentencing function in this case".

I totally understand why you would say that transparency, following guidance and consistency are all laudable objectives, because they are, but it is more about the practical operation of that provision in this jurisdiction that gives me some concern.

Mr Kingston: Right. Do you think that that might provide grounds for more appeals?

Mr Agnew: I hope not. I can see arguments of the nature that I described being made on appeal. When dealing with an appeal against a sentence, the role of the court is ultimately to decide whether the sentence was manifestly excessive. The end result is really the important bit rather than necessarily how the court got there. It is not really a public law-type exercise, but I am only flagging the potential for those types of arguments to be made.

Mr Kingston: I will move on to aggravation and make a few comments about that. I note that the clause on aggravation by hostility is easier to understand. It covers offences aggravated by racial hostility, religious hostility and hostility related to sexual orientation. We then have hostility related to disability, which is also included in the clause on aggravation by reason of vulnerability. That clause uses the term "physical or mental disability". In my head, I am wondering whether, for disability, it is aggravation by hostility or aggravation by reason of vulnerability. In the Bill, disability is covered by both.

Mr Agnew: Yes. I understand exactly the point that you are making. In practice, the offence is probably more often aggravation by reason of vulnerability than aggravation by hostility.

Mr Kingston: I would have thought so.

Mr Agnew: Disability has always been a protected characteristic under hate crime laws, but one of the observations that various commentators have made is that offending against disabled people is rarely motivated by hostility towards disabled people as a class of people, so it is a slightly uneasy fit in a hate crime model. That has been recognised by Judge Marrinan and by the Law Commission of England and Wales, which published a report in December 2021 that has led to some discussions about whether the hostility model is correct for disability.

Mr Kingston: I have yet to reach a final position on that, but I think that it fits better as a vulnerability. Under clause 36, the idea of a vulnerability relates to when someone is abusing their power because they perceive a weakness, or there is an ability almost to bully or whatever. There is that desire to exercise power.

Mr Agnew: The vulnerability aggravator is not about the targeting of the individual. A lot of people have offences committed against them because they are vulnerable to some extent. It is that the presence of their vulnerability gives rise to the aggravation, rather than there being a motivation by the offender to commit an offence against somebody who is vulnerable. The definition of "vulnerable person" is in the Bill at clause 36(7), one element of which is:

When I saw that, it occurred to me that, in cases in the Youth Court, when young people have committed offences against other young people, we may have to apply a vulnerability aggravator because somebody who is under 18 is vulnerable. I do not know the answer to that yet, and I have not really thought about it. It did, however, seem a little bit odd that we may soon be doing that. The other element of the definition is:

That is at what the offence is targeted.

Mr Kingston: I get what you say about the definition of "significantly impaired" and "for any other reason." Age is included there, but the provision is making the point that it is not just about age. It may be about frailty. There could be an argument made, for all of us, about when we become frail.

Mr Agnew: You can see how it can be very difficult to define or make judgements as to when that threshold is or is not met. It potentially places a lot of onus on prosecutors to make very difficult judgements on that, whereas a little bit of constructive ambiguity — I do not know whether that is the right term — may be required. The process works quite well as it is at the minute without having to formalise it in the way in which that provision envisages.

Mr Kingston: Are you suggesting that clause 36 should be removed from the Bill or somehow —?

Mr Agnew: I would rather that vulnerability be dealt with as it is currently dealt with rather than it be dealt with under that provision.

Mr Kingston: How is it currently dealt with? In the Bill, will aggravation by reason of vulnerability need to be declared at the start —

Mr Agnew: Yes.

Mr Kingston: — and concluded by the PPS?

Mr Agnew: Yes.

Mr Kingston: It will therefore not be something that can be taken into account or arise during a case. Rather, it will have to be declared at the start.

Mr Agnew: Yes.

Mr Kingston: Is that the difficulty for the PPS?

Mr Agnew: One of the difficulties is that we will potentially have to do that and then have to make disclosure around it. If we are saying that the victim in a case is vulnerable and that that may be because of circumstances relating to their background or any trauma, we can potentially see the defence saying, "We do not accept that. We would like to see anything that may assist us in challenging that". That would not be a particularly good situation.

Mr Kingston: Right. It puts the onus on you to decide whether to include it as an aggravator.

Mr Agnew: It does. There is no problem with putting certain decision-making on the shoulders of prosecutors, but I struggle to see the difficulty in how vulnerability is dealt with at the minute. It is well recognised as an aggravating factor, there is flexibility when it comes to the type of vulnerability — the courts have never had to define "vulnerability" in a very technical way in order to deal with it as an aggravating factor in sentencing — and it is routinely taken into account. The courts seek to protect vulnerable people in that way. The Bill proposes a different approach to doing that, but there are some problems with it.

Mr Kingston: A lot of it is about taking what is custom and practice and putting it into law. Even at the beginning of the Bill, where the purpose of sentencing is set out, it is a case of, "This is something that we might think we know, but let's actually put it down".

Mr Agnew: Yes. There absolutely is value in doing so, but the provision does not do that. It is not just declaratory or a statement of what the law is. Legislation could state, "When a court is sentencing, the following should always be considered as aggravating factors" and state that vulnerability is such a factor. That is fine and has the potential to increase public understanding of what might aggravate a sentence. That does not interfere with the prosecutorial process or what we have to prove, and it does not give rise to disclosure obligations. There are therefore ways in which to raise the level of public understanding of how vulnerability is dealt with, without necessarily bringing in a technical provision such as that that requires an aggravator.

Mr Kingston: You talk about how vulnerability is currently dealt with. How is it brought into the case?

Mr Agnew: It is focused on at the sentencing stage. The prosecution, evidence, trial and so on will focus on the elements of the offence, which do not involve vulnerability.

Mr Kingston: It is not an offence but an aggravator of an offence.

Mr Agnew: Exactly. It will become something that is up front. Under the proposed model, it will be the jury that has to make a determination on vulnerability. The judge will have to give the jury directions. The jury will have to make not only a finding on whether the defendant is guilty on all counts but, given its additional responsibility, a determination of vulnerability. The judge will have to give the jury additional instructions. It will therefore definitely add to and potentially complicate the jury's task. There may be a situation in which there are multiple aggravators. Think of our domestic violence cases. A lot of offences are aggravated by domestic violence, and the domestic violence aggravator will be added. In the vast majority of those cases, the victim will be vulnerable. Multiple aggravators will be layered on a prosecution and on the role of a factfinder.

Mr Kingston: May I ask one more question?

The Deputy Chairperson (Ms Sheerin): Make it brief.

Mr Kingston: It is a big question. Sex is not included in the provision for aggravation by hostility. Have you a view on that? Given the appalling litany of crimes against women that have occurred in Northern Ireland, should sex be included as an aggravator?

Mr Agnew: We have tended to take a neutral approach to whether other characteristics should be added. I am aware of the debate about it. Judge Marrinan recommended that gender be added as a protected characteristic, albeit he wanted to change the hostility focus of the hate crime model by broadening it — this is where the "by reason of" point comes in — so that it would not just be linked to hostility. As I mentioned, the Law Commission of England and Wales did a very detailed report on hate crime laws that was published in December 2021. It concluded — Judge Marrinan took a different view — that, within the framework of its existing hate crime model, it would not be helpful to add sex as a protected characteristic. It felt that hostility related to gender would be difficult to prove. It was worried that, potentially, that would be proven and attached in some cases but not in others, thereby creating a hierarchy of victims, which it thought would be undesirable. It felt that gender as a category was not analogous to existing groups in hate crime cases. A lot of the characteristics that are included generally involve hostility directed towards a group that is perceived as "other".

Although the Law Commission recognised that violence against women and girls is a very significant problem that the criminal justice system needs to address, it said that, given that it frequently occurs in intimate, familial or sexual relationships, the social dynamics are different and are not always captured by the hate crime model. It said that violence against women is a distinct phenomenon that should not simply be folded into the hate crime framework. It considered — the CPS may have fed into its views on this — whether, ultimately, the addition of that characteristic would result in more prosecutions and more convictions or add another challenge to the prosecution of such cases, which are already very difficult. Sexual violence and domestic violence cases in particular are challenging, so adding that characteristic has the potential to —. Arguments can be made in favour of it, so we do not take a particular view. However, operationally, it would not be straightforward.

Mr Kingston: OK. Thank you.

Ms Ferguson: I go back to clause 36, "Aggravation by reason of vulnerability". We note your opposition to its inclusion and the reasons for that. You have said that it is routinely taken into account. For the benefit of public perception, there needs to be clarification of how it is routinely taken into consideration. Do any other jurisdictions currently have vulnerability as an aggravator?

Mr Agnew: Not that I am aware of. The original policy proposal was about adding age as a protected characteristic or creating a new statutory aggravator relating to age; it was probably the former. That evolved into something that is almost unique, I think, as a proposal. I have not done a very comprehensive comparative exercise across multiple jurisdictions, but I am certainly not aware of GB or Ireland having gone down that route or of anybody having proposed to go down that route. At the minute, that conversation is unique to this jurisdiction.

Ms Ferguson: Are you aware of any work or research on how it is routinely used in court? I will be honest: there is a perception — I have had a range of people, parents in particular, say that those most susceptible to crime are the most vulnerable, be they our young people, those with addiction issues, disabled people or those who feel isolated in their home. There is a feeling that sentences are lenient and that, despite the level of vulnerability involved, they are not seeing longer sentences. That is the general perception among individuals whom I have dealt with. Having that upfront in the Bill is something that a lot of people — parents and individuals who have had crimes committed against them in particular — support. To be honest, as a result of seeing individuals continually going in and out of court — 100 times or sometimes 200 times — the feeling is that sentences are too lenient, given that those people prey on our most vulnerable, such as children in care homes and young people who may have mental health issues, capacity issues etc. That is the perception out there. I am just trying to get clarity on how it is used currently and how strongly it is used in sentencing. I am on the fence at the minute because I get how local people feel. I do not know whether you want to comment on that.

Mr Agnew: You are referring to a range of aspects of vulnerability and a more general societal concern about levels of sentencing, which may be slightly broader in scope than specifically the issue of vulnerability. As I say, it is difficult, because you could have something that says in law that vulnerability should be taken into account as an aggravating feature, but how would the public get some reassurance on that? I do not know whether the accessibility of sentencing remarks can help. I cannot remember where we are with that. A pilot on the accessibility of sentencing remarks was certainly being considered. Making them more accessible is about making it easier for the public to get them and how they are set out. That goes back to my earlier argument about having a sentencing guidelines council, the result of which would be that sentencing remarks could be made more accessible and presented in such a way that they could be understood a bit more easily by the public. I suggest that that could be a way forward. Changing public perceptions around sentencing is a long process. Vulnerability will be dealt with in each individual case. If people could see the sentencing remarks in some very high profile cases and how vulnerability was addressed by the courts, that might start to give them some reassurance.

Ms Ferguson: OK, thank you.

Mr Bradley: Apologies for being late, Chair: my previous Committee ran on a wee bit.

The Deputy Chairperson (Ms Sheerin): That is dead on.

Mr Bradley: Apologies for not being here to hear your full presentation. I will concentrate on a small part of it, which Ciara has already touched on: aggravation by reason of vulnerability. You do not seem to be in favour of that. Are you suggesting that the Committee narrow the definition of the vulnerability aggravator?

Mr Agnew: Unfortunately, I am being a bit more radical than that.

Mr Bradley: You want to wipe it out altogether.

Mr Agnew: The breadth of the definition is one issue, but a narrower definition may still give rise to difficult judgements on whether it should be included in the charge. It might also, in a sense, exclude people who are vulnerable. The breadth of the definition brings some difficulties in application. We want to capture all types of vulnerability, and I am not worried about the definition being too broad from that point of view. The breadth of it diminishes some of the messaging, however, because the aggravator can arise from the circumstances of the individual or from the circumstances of the offence. It can arise in so many ways that I am not sure how clear the labelling or messaging to the public would be around it.

You have picked me up correctly. I do not know whether you read something in advance or picked that up from my previous answers to members. I am concerned that it would make it a lot more difficult to deal effectively with vulnerability than is the case in the current system.

Mr Bradley: Do you think that it would complicate investigations or complicate sentencing?

Mr Agnew: That is a good question. It could complicate investigations. As I said at the start, we would be attaching vulnerability to something that would have to be proved before a jury or as part of a trial process. It is much more likely to become contested between the parties in those circumstances, and the defence will want to probe underneath the bonnet and seek information that might assist it in challenging that.

The second part of your question has slipped my mind.

Mr Bradley: Do you think that it would complicate sentencing?

Mr Agnew: Potentially. Sentencing is not that difficult, particularly in the Crown Court. I imagine that this would probably apply in both the Magistrates' Court and the Crown Court, although I have not yet addressed that point in my mind. Certainly, we have a more methodical approach to sentencing in the Crown Court, and this could be accommodated within that. That said, aggravators give rise to some areas of complication. The Court of Appeal adopted a particular approach to the domestic violence aggravator in the sentencing framework but decided, a number of months later, that it had got that wrong, so it changed how it implements the domestic violence aggravator in the context of sentencing. New areas of law and new mechanisms can give rise to complexity, and mistakes can be made. Once more aggravators — potentially multiple aggravators — are added to an individual case, it complicates the sentencing process.

Mr Bradley: Could there be unnecessary disclosure of personal information that a victim may not wish to disclose?

Mr Agnew: It makes that more likely because, as I said, it would be advanced at the start of a case. I used some of our very experienced prosecution counsel as a sounding board on this point, and they shared that concern.

Mr Bradley: OK. That will help me to make my mind up. Thank you.

The Deputy Chairperson (Ms Sheerin): Before I let the witnesses go, I will go back to the questions that Brian asked about adding sex as an aggravator. The Scottish working group recommended adding misogyny as a stand-alone aggravator. Do you have any thoughts on that?

Mr Agnew: I have not studied that in enough depth to want to go authoritatively on the record on it. For those who are particularly interested in the subject, the Law Commission's report looks at misogyny as an alternative to gender as a potential protected characteristic. The commission felt that that type of model would suffer from many of the same difficulties as the gender model. It considered that defining misogyny was difficult in criminal law. The law requires relatively precise definitions in evidence, and the commission was concerned that misogyny often — I will quote my notes, if I may:

It states that misogyny is not always hatred. That is kind of related to the previous point. They way that it manifests itself may be quite different from a hate crime-type situation. The commission also thought that misogyny could make prosecutions harder:

I am highlighting some of the operational concerns with my prosecutor's hat on. I recognise that there are wider issues to consider than the purely prosecutorial ones, but I see it not being straightforward to apply.

The Deputy Chairperson (Ms Sheerin): OK. Thank you very much.