Official Report: Minutes of Evidence

The Chairperson (Mr Frew): Thank you very much, folks, for coming in. I really do appreciate it. May I offer congratulations to you, Denise, on your recent appointment as chair of the Bar Council?

Ms Denise Kiley (Bar Council of Northern Ireland): Thank you very much.

The Chairperson (Mr Frew): I got speaking to you on Monday at the opening of the new legal year, but it is good to have you here, and congratulations; and, of course, David and Suzanne, thank you very much for appearing before us.

I invite you to make an opening statement. Before you start, I ask that you be as concise as possible because we are stuck for time. Again, I give a warning to members: please ask questions as concisely as you can. Do not go into a monologue, a speech or your thoughts or philosophies: just ask questions, and I ask the witnesses to answer as concisely as possible. Thank you.

Ms Kiley: We will try our best. Thank you, Chair. We thank the Committee for taking the time to hear evidence from the Bar on the Criminal Justice (Sentencing etc) Bill. I have met the Committee on many occasions as vice chair of the Bar, and, as the Chair said, I am here today in my capacity as chair of the Bar Council. I am joined by my colleague Suzanne Gallagher, who is a criminal barrister and a member of the Criminal Bar Association. Suzanne's practice is concerned with mainly prosecution work, and she has briefed as defence counsel. Suzanne brings over 20 years of experience as a barrister, and we trust that the Committee will be assisted by her expertise. On my right is David Mulholland, whom you also know. David is chief executive of the Bar of Northern Ireland.

I will hand over to Suzanne to provide you with some remarks and observations on the Bill, and then we will all be available and happy to answer your questions.

The Chairperson (Mr Frew): Thank you.

Ms Suzanne Gallagher (Bar Council of Northern Ireland): Thank you, Denise, and thank you, Chair and members, for having us today.

Before we embark on giving our evidence, it is important to reflect on and consider this question: what is the policy intent of the draft legislation? That will help to inform members when reaching their views on the Bill and in understanding the position of the Bar of Northern Ireland.

The Department of Justice has stated that the purpose of the Bill is to:

It is important that citizens are engaged and have opportunities to understand how sentencing operates in this jurisdiction. Research links public attitudes to sentencing with levels of knowledge on sentencing practices. The less people know about the subject, the less confidence they have in how sentencing works. Research also indicates that public attitudes to sentences imposed by the courts are shaped not just by their reasoning but by their emotions.

Crime, obtaining justice, and sentencing are matters heavy with emotional energy. No doubt, many of your constituents have expressed to you how they feel about the impact of crime on their lives, whether as a victim, a family member of a victim or even as a family member of someone accused of having committed crimes. It is important to keep in mind the human emotions felt when having a discussion on a sentencing Bill and the issues that that brings.

The Bar is fully supportive of measures that improve public confidence in the justice system and in efforts to assist citizens to better understand sentencing and judicial decision-making. However, we ask whether placing sentencing purposes and principles on a statutory footing will in and of itself materially improve public understanding and confidence.

There is evidence and learning from England and Wales on that. Section 57 of the Sentencing Act 2020 places the purposes of sentencing on a statutory footing, while section 59 requires the court to follow relevant sentencing guidelines:

However, a 2023 House of Commons Justice Committee report described public understanding of how sentencing works as "low" and knowledge of different types of sentences as "poor". It also detailed how the Parole Board for England and Wales stated that there was:

amongst the public. That is the research and what we are hearing about how the system works in England and Wales.

What benefit will codifying the sentencing practices bring? The Bar questions why the Department aims to improve understanding of sentencing by changing settled principles of sentencing provisions. What evidence exists that such reform will achieve the stated aim of the Bill?

Just this week, the Lady Chief Justice spoke about her disappointment that legislation to permit broadcasting of certain court proceedings will not be progressed during this Assembly mandate. We agree with that, because surely that can only assist members of the public to understand how sentencing works. The Bar takes the view that broadcasting certain matters is simply one of several measures that could increase public understanding of the criminal justice system and therefore increase public confidence in that system whilst always keeping at the fore protections for children and vulnerable participants in the process.

The Bar would like to offer comment on Part 3, which places particular emphasis on improving understanding of sentencing through the provision of reasoning in ordinary language. In particular, clause 18 requires the court to state "in open court" its reasons for determining a tariff and to explain the effect of the order to the offender "in ordinary language". That is a positive proposal. However, in my experience — as Denise indicated, I have over 20 years at the Bar and more years than I care to remember working as a prosecutor in the Crown Court — when a Crown Court judge is sentencing a defendant, they already explain what sentence they are imposing and the reasons for doing so in ordinary, plain English. For example, in one of my cases, the judge imposed a determinate custodial sentence of three years. You might think, "What is a determinate custodial sentence? That is gobbledygook to me", but the judge has to use that language, because that is the legal definition of the sentence that was imposed. However, the judge will go on to explain that that means that the defendant will serve 18 months in custody and 18 months on licence; that, when they are released on licence, they will be subject to a number of different conditions that will be set and provided to them on their release from Maghaberry; and that, if they breach those conditions, they are liable for their licence to be revoked. The judge will have identified the aggravating and mitigating factors; they will have indicated what the starting point would have been had the defendant contested the case to trial; they will have explained any reduction that they are affording for a guilty plea and why they are setting that reduction at a certain level.

In my experience, the Crown Court judiciary as a body has developed and improved the way in which it communicates to court users over the past number of years. It is very understanding and empathetic to the needs of the lay person, both defendants and victims. In sentencing cases, it is very easy for victims to feel as though they have been forgotten about, because the whole nature of a sentencing exercise is to focus on what the defendant has done, their background, how they can be rehabilitated and what can be said on their behalf. That experience of victims has been brought back to the judiciary. Nowadays, most judges will take a moment and explain to the victim, "Whilst this may sound as though it is all about the defendant, you are at the forefront of our decision-making in this process". There has definitely been a very significant move forward in the way in which the judiciary communicates with defendants and victims.

The next issue that we want to speak about is proportionality. Part 1 of the Bill proposes placing the purposes and principles of sentencing on a statutory footing, as well as a statutory duty concerning the application of sentencing guidance. In sentencing an adult offender, the court will be required to have regard to the statutory purposes and principles where applicable and must follow any relevant sentencing guidance unless satisfied that it would be contrary to the interests of justice to do so.

The Bar considers that sentencing principles are settled at present and that judicial discretion is critical. As I said, judges will always look at the aggravating and mitigating factors in an informed and reasoned way when determining sentences. The Bar questions whether statutory guidance will provide additional clarity or awareness of sentencing and that the legislation may be unduly restrictive. In particular, the legislation notes that the judiciary "must" follow statutory guidance, rather than "have regard to" relevant guidelines, and that distinction is significant as the Department of Justice's approach represents a deliberate move towards a more prescriptive approach. For example, a reference from the case of the Queen against Nelson, which is a 2020 Court of Appeal case, is:

I am sure, though, that that was said much earlier than 2020. Judges must, therefore, be afforded a margin of appreciation in determining the appropriate sentence.

It is accepted that there are other areas of the Bill that retain important elements of judicial flexibility. Schedule 3 provides that, after selecting the applicable starting point, the court must take account of relevant aggravating and mitigating factors and that assessment of those factors may result in a tariff of any length irrespective of the starting point. In addition, any regulations made by the Department to amend the statutory starting points must be laid before and approved by resolution of the Assembly. Those safeguards are relevant when assessing the proportionality of the proposed framework.

I will touch on rehabilitation. Part 2 of the Bill proposes that the judiciary can impose community requirements alongside suspended sentences, allowing rehabilitative work to be undertaken during the period of a suspended sentence. The Bar is supportive of greater usage of community requirements and suspended sentences when used as an alternative to short prison sentences. Evidence from England and Wales indicates that community and suspended sentences are associated with lower rates of reoffending than the imposition of short custodial sentences. In my time at the Bar, I have often heard members of the judiciary expressing a level of disappointment that they cannot currently utilise community-based disposals alongside suspended sentences, as is the case in England and Wales. It is eminently sensible to afford that option to the judiciary here, strengthening and reinforcing the benefits of probation assistance to the rehabilitation of offenders, whilst leaving something hanging over an offender to deter future reoffending.

I will touch briefly on the aggravating and mitigating factors in the cases of mandatory life sentences for murder. Schedule A1 deals with tariffs in cases of mandatory life sentences for murder, with paragraphs 5 and 6 placing on a statutory footing mitigating and aggravating circumstances that may be relevant to the offence of murder. That, in effect, begins to create structured sentencing guidelines for the offence of murder. In the Bill, each of those would instead normally attract a starting point of 20 years, leading to an increase in tariffs in murder cases. The Assembly's research paper shows that the average murder tariff since 2020 varies between 17 years and 21 years as it stands. Judicial discretion accounts for that variance at present. We know that tariffs can be significantly higher when aggravating factors are applied by the courts. We are all acutely aware of the tariff of 31 years imposed earlier this year following the heinous murder of Natalie McNally and the resulting death of her unborn child. That clearly demonstrates that the courts can, and do, reach proper tariffs by exercising the discretion that they have under the current system.

Part 6 introduces new statutory aggravations based on hostility, vulnerability and offences committed against public workers. That approach would not create new offences; rather, it would apply where an existing offence is motivated by or demonstrates hostility towards one or more protected characteristics. The potential definitions of "hostility" and "vulnerability" are broad, which may prove to be problematic, especially for prosecutors. The issue of vulnerability as an aggravator is a tricky one. I can personally attest to the fact that, at present, the courts deal with vulnerability as part of the sentencing process day in and day out. Currently, the courts can, and do, take account of all manner of vulnerabilities, including age, and vulnerability because of intoxication, isolation from friends or family, learning difficulties, being in the care system, not having family support, being homeless, or suffering from an addiction. There are so many different situations in which vulnerability is already recognised and taken into account by the courts as an aggravating factor. Trying to prescribe it as a statutory aggravator, which would mean putting it on the indictment at the start of the case, has the potential to cause more practical problems than you might think, and more problems than it might solve.

We have found that the attachment of a statutory aggravator may have the unintended consequence of making cases more difficult to resolve at an earlier stage. Experience suggests that defendants are less likely to plead guilty at an early opportunity where an aggravator is an issue. Perpetrators may accept responsibility for the act and might be willing to do that at an earlier stage but then contest the motivation behind it. It could be the case that several aggravators apply to the one case. Is that the intention? Is it the intention to add multiple aggravators to the one offence? There is also the potential for a double-counting situation to arise when aggravators are applied. Take the example of a sexual assault against a family member. Ordinarily, the aggravating factor would be that there is a familial link, but you cannot put that down as an aggravating factor if you are applying the domestic aggravator, because that is already taken into account by the courts. There is a danger of double counting. If you are adding together multiple aggravators, that potentially makes things more complicated. Is it the intention of the Department to have more than one aggravator applied to offences? It is not clear whether that is the case. It could lead to more complex issues arising and, potentially, appeals.

I move on briefly to attacks on officers of the court. The Bar is in support of the Law Society's call for the statutory recognition of an officer of the court as providing services to the public, with attacks on officers of the court being aggravating factors in sentencing. The Bar recognises that legal professionals work in one of a number of professions where professionals face threats, harassment and abuse in the course of carrying out their professional duties. We are conscious of the challenges faced by many professionals working in public-facing services, and we recognise the importance of ensuring that the appropriate protections are available to all those who face such challenges in the course of their work. As a membership organisation, the Bar of Northern Ireland has surveyed its members, who told us that threats and harassment are often an unwelcome reality of their working life.

We understand, too, that solicitors are front-facing, often based in offices in their communities, and, generally, an important part of many towns and cities in Northern Ireland. That presents solicitors with a particular problem with threats and harassment. Legal professionals who work in criminal and family law in particular can often be vulnerable to people on the other side who view them as an extension of their client. That is why the Bar of Northern Ireland holds firm to our standing as an independent referral Bar. Barristers should never be associated with the alleged actions or the causes of their clients. That is fundamental to the rule of law and a principle that must be upheld.

Finally — you will be pleased to hear that, as I know that time is tight — I will touch on Charlotte's law. The Bar supports the application of an aggravator where a perpetrator fails to disclose the location of a body. We also support provisions that allow parole commissioners to consider an offender's failure to reveal remains when making their decisions. The policy intent in the proposal is right and proper: it is to reduce the trauma for families by creating legal incentives for offenders to provide information about the location of victims' remains, and consequences when they do not.

Thank you very much for your attentiveness. We would all welcome your questions at this point.

The Chairperson (Mr Frew): Thank you very much for that, Suzanne. I will go straight in and talk about aggravation by reason of vulnerability, which is clause 36. There seems to be an issue around how to address vulnerability as an aggravator. You talked, rightly, about all the aspects of vulnerability that may be taken into account in a court. Interestingly, the aspects that you mentioned, such as homelessness and drug addiction, are not clearly defined within the aggravator. The aggravator only accounts for a "vulnerable person" being:

which is a child, or —

The term "for any other reason" is doing a lot of work there. The Public Prosecution Service (PPS) gave evidence to the Committee. Its representatives were really concerned and raised a series of, I think, seven or eight issues with that. I am asking this of you guys because you have the apparatus of a court in your mind and in your trade. There is a worry that, if the prosecutor does not apply the aggravator at the start of the proceedings — at the time of the charge, basically — the court may not be able to take vulnerability into account in sentencing. Is that your understanding?

Ms Gallagher: No, it is not. Sometimes, vulnerability does not even become apparent until we are into the case. Essentially, the court is never stopped from taking vulnerability into account. Trying to prescribe it in the way that is suggested may cause more difficulties in allowing the prosecution to put those vulnerabilities properly before the court. Vulnerability may become apparent in the course of consultations with witnesses, for instance. It might appear, on reading their statement, that a person does not have any vulnerabilities, but you might then meet and speak with that person and know, straight away, that they have vulnerabilities, and that can be brought forward. I do not think that it needs to be brought in at charge.

The other part is that police charge defendants with a number of offences. They have to submit their full file to the PPS, which goes before a directing officer. The directing officer looks at all the evidence and can change the charges that the police have proffered. That can be further changed by counsel, when it reaches us in the Crown Court. Charges can even be added to those that were brought by the police, subject to the evidence having been there from the beginning. Charges can be changed and amended to take account of the changing circumstances. I do not think, therefore, that vulnerability really needs to be codified in that manner. It is already properly taken account of daily by judges in sentencing.

The Chairperson (Mr Frew): If I am right, the aggravation itself is basically that the person has been targeted because of their vulnerability in more ways than one. There could be high thresholds as regards obtainable evidence. The definition is:

Do you see a problem in trying to prove that?

Ms Gallagher: Yes. In advance of our attending today, I listened to the deputy director's evidence at the Committee. I agree with him that it raises so many issues, even around the victim's right to privacy and whether sensitive matters would need to be disclosed at an early stage. The defence could want access to a lot of material to see whether it has any impact on the advices that it gives to its client and on how a case might run. In my view, that could lead to victim attrition, whereby a victim thinks, "I'm going to have to tell my whole life story to somebody from the very get-go, and that makes me feel very uncomfortable". A victim might then not wish to proceed. We have to think carefully about it to make sure that we are not imposing a new regime that actually detracts from the purpose of the Bill, which is to provide clarity and understanding around sentencing.

The Chairperson (Mr Frew): I will flip that to the other side. The Bill states that if "A", which is the perpetrator:

How do you prove that?

Ms Gallagher: That is very difficult to prove. We all know that there are a lot of vulnerabilities that are not clear straight away. People may be wearing lanyards to indicate that they have disabilities, but, if they are not, how do we know whether they are suffering from autism and will react in a certain way because of that, or not react in the way that an ordinary person in the street might expect a person to react, if they were, for example, sexually assaulted? If you add that in as to the perpetrators' knowledge, it becomes difficult.

The Chairperson (Mr Frew): Uh-huh. One of the things that we touched on in the last session is the very clear definition of "vulnerable person":

"A" might not know the age of the person. Clause 36(7)(b) goes into all the other definitions, including:

What if I said that I was considering proposing that "female" be put into that? Therefore, a "vulnerable person" would be:

Ms Gallagher: Well, are all females vulnerable?

The Chairperson (Mr Frew): If we are talking about the offence of femicide, would adding "female" into that aggravator do the same thing?

Ms Gallagher: We have to be very careful when we start using a gender label, whether it is female or male. As we know, the statistics show that women in Northern Ireland are in a dangerous position. However, the majority of offences committed against women in Northern Ireland are committed by people whom they know — by partners or family members. The domestic aggravator that already applies deals with that. I worry that, by adding other aggravators, it would start to become complicated and make it more difficult for the prosecution, as opposed to assisting the prosecution. We are not saying, of course, that the prosecution is there to obtain convictions at all costs — that is not what the Public Prosecution Service does. The prosecution presents the evidence, and it is for the jury to decide. However, introducing different layers of aggravators would make the whole system much more complicated.

The Chairperson (Mr Frew): OK, thank you. I will put it out to members.

Mr Kingston: You do not seem very supportive of the Bill. Do you think that the Bill is not required?

Ms Gallagher: I am not saying that we are not supportive of the Bill. There are many beneficial aspects to Bill.

Mr Kingston: I missed your mention of those in the presentation. [Laughter.]

Ms Gallagher: We need to think carefully. Is there the evidence to support a change? From my experience, we have a very skilled judiciary. We are a much smaller grouping than, for example, the judiciary in England and Wales. The Sentencing Council and sentencing guidelines were brought in there, in part, because England and Wales is such a large jurisdiction, where there are so many Crown Court judges that it would be hard to keep track of what a judge in Leeds is doing compared with a judge in London. We may have only around 15 — there are not too many Crown Court judges in this jurisdiction. They are very experienced. They are skilled. They use the experience that they had as practitioners before they went to the Bench, which is generally the case. They undertake regular training. Before we abandon all of that to move to a different system, I want to know whether there will actually be a benefit in moving to that totally different system. Research suggests that, as it stands in England and Wales, there is no benefit, as regards public understanding and appreciation of sentencing, to, for example, the Sentencing Council and sentencing guidelines. Where is the evidence? That is really our point from the Bar. If there is supporting evidence that this will make it better and more straightforward and will make the public more aware, yes. However, if there is no evidence, why do we need to codify something that is already in place and working? If the purpose of the Bill is clarity and understanding, let us try to focus on ways in which we can improve public understanding and enable them to follow proceedings better.

Ms Kiley: We encourage the Committee to consider the potential unintended consequences of the outworkings of the provisions. As Suzanne has said, many of the principles that are contained in the Bill are being applied by our judiciary, on a day-to-day basis, in their discretion in those cases. We encourage the Committee to consider the potential complexities and the risk of codifying this area of law and whether that might create unintended consequences such as the complexities that Suzanne has referred to: for example, the potential for double-counting; and the potential to be too inflexible and remove the level of discretion that the judiciary has.

Mr Kingston: We want to hear your honest views; I am not being critical. We want you to be critical. You represent barristers essentially, not judges.

Ms Gallagher: Yes.

Mr Kingston: I welcome the setting out of the purposes of sentencing at the start of the Bill. Do you have any views on "punishment", "protection", "deterrence", "rehabilitation" and "reparation" and the need to "have regard to" the listed principles? Do you feel that those are not correct?

Ms Kiley: We are not saying that they are incorrect or taking any issue with them. We are taking issue with the need to codify them. What we are saying is that that already happens in practice. The Department says that the intent behind the Bill is to increase public understanding of sentencing. We question whether codifying those principles will have that effect. Suzanne has referred to evidence from our sister jurisdictions that have that sort of codification. That evidence shows clearly that those systems have not resulted in a better understanding. We do not take issue with the actual principles; it is about whether they need to be set out in a Bill like this and whether doing so will achieve the stated aims.

Mr Kingston: As regards "must follow", clause 2(1) states:

so there is a get-out.

Ms Kiley: There is. Suzanne is a criminal barrister; I am not. I am a public law barrister and spend my days arguing over the meaning of words in legislation. A huge amount of judicial ink has been spilt on the meaning, in legislation, of the words "have regard". As you know, "have regard" is the more common phraseology in legislation, whereas, in my experience, "must follow" is quite unusual. The term "have regard" is used because it allows for an area of discretion for a decision maker, and the reality is that judicial decision-making in sentencing involves an area of discretion. If the Bill were to pass and there were to be codification, there would still need to be judicial discretion. The language "must follow" does not sit neatly with that and appears to be out of sync with much of the other legislative drafting that attaches to discretionary decisions.

The Chairperson (Mr Frew): Is it fair to say that, if Part 1 were to be taken out of the Bill, it would not do the Bill any violence but might assuage some of your concerns, or is Part 1 just an intro to the rest of the Bill?

Ms Kiley: Ultimately, the rest of the Bill follows on from the purposes and principles, so it is not clear —.

Ms Gallagher: It would not make much sense to take out Part 1. As Denise said, everybody agrees with the purposes. There is no particular issue with the purposes; it is more about the application of them in the manner in which —.

The Chairperson (Mr Frew): Yes, and that is threaded throughout the Bill.

Sorry, Brian, I interrupted you.

Mr Kingston: That is fine. I will ask just one more question, because there are others to come in. I am looking for the bit on life sentencing, which you touched on. It is Part 3. On page 46, it states:

Paragraph 2 states:

When I hear "life sentence", I think, "20-plus years". What is your experience of what the actual sentence works out as being in the case of a life sentence?

Ms Gallagher: The research shows that, over the past five years, the average tariff set has been between 17 and 21 years. As I indicated, there is a variance because of judicial discretion, but that is the average. As we are aware, there are cases that are much more serious, and much more serious tariffs are given in those cases. It comes back to the same point, which is that judges are already applying what we are all talking about, but without it being codified. If the mischief that we are trying to cure is public understanding, there are other ways that we can do that, rather than by codifying what is already in place and is already settled law.

Mr Kingston: The intention of the Bill is probably to give confidence that there is consistency in sentencing — that it is not a mysterious process whereby judges all follow what practice they have, but that a standard is set.

Ms Gallagher: Absolutely. I understand that, but I think that we can educate the public. If TV cameras were allowed in to broadcast sentencing in cases, the public would very quickly get to know that judges all follow the same pattern. No judge in the land will just go into a Crown Court case and come out and say, "This is what you're getting. There you go. Cheerio". A very settled structure is followed. If a judge does not follow that procedure and the case is appealed, the Court of Appeal will come down on and be critical of that judge for failing to do that, and it will be critical of the prosecution for failing to highlight to the court that the judge should be following the rules and regimes that are already in place.

Mr Kingston: Will this make a significant difference? Is it not just putting down in black and white what is the practice?

Ms Gallagher: As Denise said, the clause states "must follow" as opposed to "have regard to". That is quite a significant shift from where we are.

Ms Kiley: The import of that is that, because it will have a legislative basis, it can only then be changed by legislation, whereas, at the moment, the process allows for inherent flexibility. The Court of Appeal is made up of expert judges, and this is their bread and butter. In giving guidance on sentencing to other courts, they are able to respond to various factors that might influence that over time: for example, different social trends or different attitudes. They might be able to ascertain that particular guidelines that were once appropriate are now not. They have more flexibility to update than would happen were legislation to be passed, whereby, under this clause, an update could come about only on a legislative basis. You may find that the guidelines quickly become out of date, whereas one of the advantages of our system at the moment is that it can be responsive.

Mr Kingston: OK. Thank you.

Mr Beattie: Thank you very much indeed, Denise, Suzanne and David. I will put my hands up and say that I am an advocate for having a sentencing council for Northern Ireland. There is no point in my dancing around that, and I will disagree with quite a bit of what you are saying. All that I am after is consistency and transparency in, and understanding of, our judiciary and sentencing. You are absolutely right, Suzanne, that understanding of sentencing is poor. For the most part, the people who want to understand it are those who are in the criminal justice system. They are the ones who need to understand it the most.

Confidence in our criminal justice system is very poor because it is so complicated. You made a really good point about plain English. The judiciary use case law for everything, and people cannot follow it. I am looking at the website of the Sentencing Council for England and Wales: it lays everything out pretty simply. People can visit the website, identify something, look it up and find it. If I visit the Judiciary NI website and click on "sexual offences" in the "sentencing guidelines" menu, the first result that comes up is "King v Gordon McBrearty". What on earth is that?

Ms Gallagher: Well —.

Mr Beattie: The point that I am making, Suzanne, is that there is no transparency or understanding. We are laypersons: we do not have that understanding, nor do we have your exceptional breadth of knowledge.

Ms Gallagher: That can be improved through discussions and proper reporting. Sometimes, headline sentences are reported, including on social media, and no consideration is given as to what has gone on in the background of the headline sentence that has been imposed. In my experience, not many people go online to check the Judicial Studies Board on the Judiciary NI website or the sentencing guidelines on the Sentencing Council website. A defendant who is impacted directly by being in the criminal justice system will speak to their solicitor. The solicitor will explain in detail the potential outcomes and give the defendant advice on the strengths and weaknesses of their case. I, or any other prosecutor in the Crown Court, will meet a victim and explain to them what the likely outcomes are. At the time of sentence, the court will go through the case very methodically and explain the sentence. After that, the defendant will be spoken to again by their solicitor and counsel in order for it to be explained to them in simple terms what has just happened. The victim and their family will also be spoken to again in order for it to be explained to them in very simple language what has just happened.

The Lady Chief Justice indicated, at the opening of her previous legal term, I think, that she wants there to be more clarity and use of simple language. That is being progressed by the judiciary. It is therefore not as easy to say that it is a bit of a minefield and that nobody knows what is going on. There are ways in which people can be informed.

To return to the issue of the broadcasting of sentencing, that initiative would be very helpful for members of the public, if they were able to tune in and say, "Well, this is how it works". That happens in America all the time, and the public love it. People here follow American trials, so it would be useful to have broadcasting of sentencing, but it is not as straightforward as saying, "It's all very complicated, as it refers to case law". Yes, it does, but people who work in the sphere — you have just had in witnesses from Women's Aid and Nexus — will also be knowledgeable about what sentences are likely to be imposed, so they can give guidance to victims.

Sexual offences legal advisers (SOLAs) have been introduced here. In a lot of serious sexual offence cases, a legal adviser is available to a victim to whom they can speak over and above speaking to the prosecutor. Victims can speak to the SOLA and say, "I'm a bit confused about what this is. Can you explain it to me?", and the SOLA gives them that information. There are child sexual offences legal advisers (CSOLAs) now as well, so other things are going on in the background to assist with knowledge. I am not as confident as you are, Doug, that, if we were to have that system, people would understand it any better.

Mr David Mulholland (Bar Council of Northern Ireland): Doug, we all recognise that legislation can be off-putting and technical, but it seems to be a curious solution to have more technical legislation to fix that problem. Even in today's evidence session, there have been references to clause 3(2), clause 2(1) and schedule 3. I do not know whether that what you suggest would remedy the problem that you are highlighting.

Mr Beattie: To be honest, very few people will look at legislation to that degree, but they will certainly look at the wave-topping issues. I will give you an example, Suzanne. I have long said this, but why are written copies of sentencing remarks not free and immediate to the victims?

Ms Gallagher: It is because they will not be. In many cases, they are not even free and immediate to the counsel involved in cases. The Lady Chief Justice has discussed the proposal about providing written judgements to victims. It is a great idea, but it will not happen in the Magistrates' Court, because that is a different setting. In Crown Court cases, most judges will have a written judgement, and if they were asked by the Lady Chief Justice to provide it, I am sure that that could be done.

Ms Kiley: That ties in with what we are saying about public legal education and how there may be other ways in which to educate the public. Suzanne spends her days in the Crown Court, and it is quite clear that there are lots of ways for those who participate in criminal courts, be they victims, witnesses or defendants, to have a series of resources available to them to ensure that they are able to understand what is going on in court and understand the sentencing. If there is a block — a problem — in getting that understanding out beyond the court to the wider public, we need to look at how we overcome that barrier. Courts are public buildings, but not everyone is going to sit in a court, so the types of initiatives that you have just described might make that information more accessible. Suzanne referred to broadcasting, and we have talked about plain English, so we are certainly not averse to any of those sorts of suggestions. In fact, we are saying that that type of public legal education is exactly what is needed but not by way of a Bill such as this.

Mr Beattie: Those are fair and detailed answers, and I thank you for them. There are things that you have said that I will have to take away and consider. I still have a real concern, however — this is not a question — that the general public just do not get it, and they do not have the ability to get it, because there is nothing openly available to them to do so. So many people come to me and say, "Did you see this sentence? What's going to happen with that?". Even I cannot get access to the information to assuage their concerns.

Ms Gallagher: That feeds into the fact that the topics that we are talking about are emotive. People will just take a view and say, "For this type of crime, a sentence of x years' imprisonment should be imposed". No matter how much information is available to them, you may never sway them from their view, which is perfectly understandable. It is a tricky situation but one that can be assisted by a number of projects that can be brought forward. I would need to have more evidence in order to say that applying codification would solve those ills.

Mr Beattie: I will finish on this. I am part of the way with you, because I still believe that there needs to be flexibility. The judge needs to have a degree of flexibility, but people think that the problem is that there is too much flexibility now. Codifying it would therefore bring it into a slightly different realm. The judge would still have flexibility — that would not be taken away — but that flexibility would be tightened up a little.

Ms Gallagher: That is not true. It is not the reality of the situation. Judges apply guidance from the Court of Appeal. They do not just go off on a folly of their own. Sentences are passed in a very structured setting. The point was made that we are here on behalf of the Bar rather than on behalf of the judiciary, and that is absolutely right, but we appear before the judiciary day in, day out. As barristers, we also make sure that the courts stay within the guidelines that they are supposed to adhere to, because to do otherwise would be a dereliction of our duty. There is therefore a significant link.

Mr Beattie: Thank you very much.

Mr McGlone: Thank you for your presentation. I will go back to the statutory aggravation model. In your written submission, you referred to the potential impact of the statutory aggravator by reason of vulnerability and the effect that it may have. Will you expand a wee bit on the potential effect of that on the process?

Ms Gallagher: If a vulnerability is placed on a case from the very start, the defence will want disclosure about what that vulnerability is. That will initially lead to applications by the defence for further, third-party materials, perhaps containing private, confidential information about an individual's background and personal circumstances, to be disclosed. That is one example of how, straight away, other issues may arise from the addition of vulnerability to the indictment.

Mr McGlone: Right.

Ms Gallagher: A victim may not want that.

Mr McGlone: You are here and speaking as a prosecutor, but may I ask you to flip hats, or wigs? Would you say the same thing if you were a defence barrister?

Ms Gallagher: For defence practitioners, it would lead to more applications being required from their side. They would not be able to advise their clients fully until they had followed those routes.

Mr McGlone: That is a process, not a problem.

Ms Kiley: It has the potential to become a problem if it creates a resource burden. That is part of what Suzanne is saying. It has the potential to slow down cases.

Mr McGlone: No. That is moving us on to a different thing, which is how the process works and how it may be slowed down. We often hear about the slowness of the courts, and that is one thing. The effectiveness of doing so or the impact on the individual, aside from the process, is the other thing. It depends on which set of glasses you look through. That is why I am asking you to look through different glasses, play devil's advocate and say whether you would say the same thing if you were not a prosecutor.

Ms Gallagher: What benefit would adding it as a separate aggravator have? From the defence's point of view, would there be a benefit? No.

Mr McGlone: You are here representing the —

Ms Gallagher: The Bar.

Mr McGlone: — Bar Council in toto, not in partem. Leaving aside the process, do your colleagues on the other side, whom I am sure you know well, have a similar opinion, including on how long it takes to gather up paperwork? You know much better than I do how long it takes to gather up paperwork.

Ms Gallagher: I do not think that criminal defence practitioners would welcome having another aggravator added to indictments, if that is what you are asking.

Mr McGlone: It is not particularly what I am asking, no.

Mr Kingston: May I come in for a second?

Mr McGlone: Sure, Brian.

Mr Kingston: Through the Chair.

The Chairperson (Mr Frew): Go ahead, quickly.

Mr Kingston: I think that you said earlier that judges do take vulnerabilities into account.

Ms Gallagher: Yes, they take them into account already.

Mr Kingston: At least this, in a way, makes that formally part of the process rather than something that is done, if you like, in secret. At least the defence can then perhaps address that and say that something was not a factor, if it wants to argue that. At least the process is then more open, rather than being mysterious.

Ms Gallagher: As the Chair said, based on the wording of the legislation, it may be very difficult to prove. It raises a lot of issues, whereas, if it is not on the bill of indictment as being a statutory aggravator, the court can still take it into account. The defence can still argue against it if it feels that the court should not take it into account. Adding a statutory aggravator by reason of vulnerability would complicate what are sometimes very complicated bills of indictment already. It would add another layer of complication.

Ms Kiley: If the question is geared towards whether the clause might ensure that the defence had a greater knowledge of such issues and was able to respond to them, it is not the case that the aggravator is currently taken into account in secret. The defence will already be able to make arguments about that, so codification would not have that effect.

Mr McGlone: I am asking this because I do not know. I am not a professional in the courts like you are. We have heard clearly your professional point of view, Suzanne, as a prosecutor. It is always the case in court that two views or aspects of a case are presented. All that I am asking is whether some of your colleagues who are defence barristers may have a slightly different take on it. I ask that because you are representing the entire Bar.

Ms Kiley: That is a fair question, but Suzanne also has experience of defence work, and, as you said, she is in court with defence practitioners.

Ms Gallagher: I do not think that they are overly keen to add other layers of aggravators to indictments. I do not think that it is something that prosecutors do not want but that defence barristers do want. I do not think that it works like that.

Ms Ferguson: I have a quick comment to make. Vulnerability is a core aspect to be added, because the majority of people are unfamiliar with how the outcome of a case is arrived at. When they see the sentencing, they consider the level of vulnerability of the victim. In cases that have resulted in a death, the wider family circle cannot understand how the offender got the sentence that they were given, based on the core vulnerability of the victim in the first place. That is just a comment to say that a lot of what is being said about the area of vulnerability is coming from the wider public.

Ms Gallagher: It goes back to knowledge and understanding, and that is slightly different from codifying the sentencing practices that are in place. It is therefore perhaps more about teaching and understanding.

Ms Sheerin: Thanks to you all for your presentation and for your patience. We have gone through an awful lot of the Bill in detail. I hate to labour the point, but we are trying to legislate and are frequently told that we are trying to legislate with the very best of intentions. Oftentimes, when legislation that is passed here comes to being implemented, it does not work out in practice as it was intended.

Taking them separately, I have two things to say about aggravators. First, there is the question about the aggravator by reason of vulnerability, and you have given us a clear rationale for why you are not in favour.

Secondly, I have a particular interest in the potential to add a misogyny aggravator. In the previous session, we heard from a representative from Women's Aid, who made the point, which you have since reinforced, that that could lead to duplication when domestic incidents result in murder. I need to address how a question was put earlier. There was a suggestion that "female" should be added to the list of vulnerabilities. I know that you answered very succinctly the question that was put to you. The very notion, however, that all women are weaker or vulnerable, and the idea that women are murdered because they are weaker or vulnerable, is inherently misogynistic. That is something that we have to be very careful about as we scrutinise the legislation. That needs to be acknowledged.

Ms Gallagher: Yes. The problem is not the women but the perpetrators.

Ms Sheerin: Exactly. I take on board what you and the witnesses in the previous session said about how adding a misogyny aggravator would work practically, but the reason that we would like to add that aggravator is to do with the education piece. How do we square that circle?

Ms Gallagher: It is very important that children as young as primary-school age be educated on the proper way in which to behave, by which I mean boys' attitudes to girls and girls' attitudes to boys. The younger that they are when they receive that message, the more impact that it will have on those children as they grow up and go through their life and may determine whether they come into contact with the criminal justice system or not. The sooner that that message is got out in education, however, the better that it will be for the community in general.

Ms Kiley: You said, Emma, that you are being asked to legislate with the best of intentions. That is absolutely right, and we all acknowledge that. Legislation is not the only means by which our elected representatives can reach the people, however. A huge amount can be done on public legal education. We have talked today about various options, such as broadcasting, education and awareness campaigns. We encourage the exploration of going down those sorts of avenues in order to increase education about all of this.

Ms Sheerin: Thanks. I completely agree with everything that you have said. That is so important. There is a challenge for us here in how we manage it. People have referred to the Natalie McNally case and mentioned how powerful the sentencing was, in that it gave victims a lot of hope and reassurance. The reason that we would like "misogyny" to be added as a statutory aggregator is in order to state explicitly, "This man has been served with such a sentence because he is misogynistic and planned the murder of a woman in the cruellest fashion".

Ms Gallagher: A domestic aggravator would appear on a criminal record.

Ms Sheerin: Fair enough. The question that I put to the witness in the previous session was this: given that misogyny is the very reason that men kill their partners, how do we ensure that both messages are reflected or both lessons are learned? It is not the case that she was murdered because she happened to be living in the same home as that man.

Ms Gallagher: It is also important to remember that it is not just present in the most serious of offences. Domestic violence on a lower level is being perpetrated against women daily in Northern Ireland. That does not make it any less serious, and it does not make it any less impactful on or damaging to the victim.

Ms Sheerin: Even in this place, I hear a lot of conversation about violence against women and girls, only to hear the very same misogynistic tropes that lead to violence against women and girls. The two are almost treated as though they are stand-alone and separate, but they are intrinsically linked, and I would like to see that reflected in the Bill. That is a challenge for us. You have given us a lot of food for thought. Thank you.

The Chairperson (Mr Frew): Next up is Maurice, who is on the TV.

Mr Bradley: On the TV. I have never been on TV. Thank you, Chair.

I listened intently to your presentation, and I took a few notes. Is there a danger that attributing public concern or public misunderstanding appears to be dismissive of victims? What evidence does the Bar have that perceptions of leniency are primarily caused by poor education or misunderstandings about the workings of the court rather than by the sentencing outcomes themselves?

Ms Kiley: Thanks, Maurice. In our approach, we do not intend to be dismissive of victims at all. In fact, we are saying that victims are already central to the process and that the principles that the legislation is trying to codify are already in place and being operated. Suzanne gave some examples of how the various characters in court appearances are able to include the victim and make sure that there is that level of understanding. We are certainly not saying that the voice of victims should be forgotten.

When it comes to perceptions and the question of whether there is understanding, it has been acknowledged in our discussions this afternoon that there is a lack of awareness and understanding, and addressing that is the purpose of the Bill. We have talked a lot about that today, because increasing understanding was the Department's express purpose in introducing the Bill. Our written evidence refers to the 2023 House of Commons Justice Committee report, and Suzanne also mentioned it in her oral evidence. It looked at the levels of available public information and the levels public understanding in England and Wales. We highlighted the fact that those remain poor, even though they have that level of codification.

Mr Bradley: I have one more brief question. A weekly court list is provided to the media, including media outlets, newspapers and television platforms. Do you think that, if a watered-down version of that court list were to appear, members of the public could log on to, say, the court website and read about upcoming cases, meaning that they would have a better understanding? I know from experience that court lists are quite detailed.

Ms Kiley: Yes, that already exists, Maurice. They are on a public-facing website. You can get the judicature list every day. It is published the evening before. It sets out all cases that will be in the High Court and at the Royal Courts of Justice the next day. Moreover, a public online system provided by the Northern Ireland Courts and Tribunals Service on justice-ni.gov.uk publishes the cases in the criminal courts.

Ms Gallagher: They are published up to a week in advance.

Ms Kiley: There may be work to be done to educate people about how they can access it, but that system already exists.

Mr Bradley: I am kind of lazy. I used to get it sent to me, so there you are. I may now go and look for it myself.

The Chairperson (Mr Frew): I have a number of questions. You have majored on broadcasting, and I hear you, but what types of proceedings are you thinking of, and would it only be sentencing broadcasted?

Ms Gallagher: At this stage, it would not be the best idea to broadcast a live trial, because it is ongoing, and people may hear things that they should not hear or that may interfere with the process. Crown Court sentencing remarks would be a very good place to start, because that would cover a range of offences, such as violent offences, sexual offences and driving offences. The only issue with that is that there would need to be a particular awareness of anonymising victims, because they are entitled to lifetime anonymity. If such cases were to be broadcast, there would need to be very clear terms set so that that entitlement was not breached.

The Chairperson (Mr Frew): Who would be videoed? Would it be only the judge? Would it be defendants? Would it be barristers?

Ms Gallagher: From how it works in England, it would normally be just the judge.

Ms Kiley: I agree that the broadcasting of sentencing remarks in the Crown Court is the obvious place to start. We have to be mindful of the fact that Northern Ireland is a small jurisdiction. That brings with it different factors to consider. Moreover, our courts deal with many cases involving vulnerable people. Suzanne mentioned that in her opening remarks when she talked about the need to be careful to ensure that vulnerable participants in court cases, be they children or vulnerable adults, are protected. More needs to be done to try to understand how that broadcasting piece would work, but it would certainly be a good start to the public legal education about which we have spoken.

The Chairperson (Mr Frew): Would there be any exceptions in the Crown Court — any public interest tests — about which we would need to worry?

Ms Kiley: All those things would need to be considered if we were to embark on broadcasting. More work needs to be done to see what it would look like. The pilot that took place has gone some way to starting that conversation, but more consideration needs to be given to it.

The Chairperson (Mr Frew): Where would the broadcast air? Is there a court website on which it could be broadcast,? Would it be on YouTube? Would it be —?

Ms Kiley: There are potential options. For example, I have worked on public inquiries in my practice. Public inquiries broadcast on their website, so that can be done easily. The Courts and Tribunals Service as a whole is a bit different. The technology that is available to it would need to be looked at. We cannot speak to that, but those are exactly the types of practicalities with broadcasting that will need to be explored.

The Chairperson (Mr Frew): OK. Thank you very much for your time. We are up against it with time, so thank you for all your answers.

Ms Kiley: Thank you, Chair and Committee.