Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The Committee will receive oral evidence on the Criminal Justice (Sentencing etc) Bill from Department of Justice officials, with our other evidence sessions on the Bill now completed. Members will have the opportunity to explore or seek clarification on the issues that were raised in those evidence sessions before our deliberations begin next week. We are joined by Andrew Dawson, director of the criminal justice policy and legislation division; Angela Bell, Bill manager and policy lead; Alan Weir, head of sentencing policy unit; and Chris McElwee, head of the hate crime branch. As always, you are all very welcome to the Committee; thank you for your attendance today.

I suggest that the Committee takes each Part of the Bill in turn so that the officials have an opportunity to make some opening remarks on each Part, if they wish to do so. Those remarks will be followed by questions from members before we move on to the next Part. The session has been scheduled to last for 90 minutes, which, in sporting terms, is the duration of a football match, but it may last longer if members wish to continue. If we are making progress and are nearly through the Bill, we will carry on in order to get it completed. If not, a further session with officials will be scheduled for Tuesday 13 October.

Without further ado, we will go to Part 1 of the Bill, "Exercise of court's discretion when sentencing", which comprises clauses 1 and 2. Are you leading off for us, Andrew?

Mr Andrew Dawson (Department of Justice): I am happy to give you a brief introduction on what we have commented on. There has been a good level of support for the "Purposes and principles of sentencing" that are identified in the Bill. We noted carefully Professor Brown's opinion piece in the 'Irish Legal News' and his letter to the Committee, which outline his thoughts on clause 1 and what he perceives to be its flaws. We do not agree that clause 1 is flawed. Professor Brown's view is that clause 1 should include a definition of "seriousness" in the context of understanding proportionality. We say that it is commonly understood that the seriousness of offending is defined by reference to culpability and harm. Our view is that, as that is implicit, it does not need to be expressly stated.

Another point that Professor Brown made relates to the inclusion of clause (1)(4)(b), which requires consideration of:

in the assessment of proportionality. We are aware of the current debate around the use of good character references. However, I must stress that "character", as used in clause 1, goes far beyond what might be drawn out in a good character reference; it includes the whole of the person's character, good and bad alike. Any assessment of culpability as a key indicator of seriousness must include assessment of the offender's intentions and state of mind, which are, in turn, driven by their "character and circumstances". Decisions on culpability, therefore, absolutely require consideration of both character and circumstances and cannot be properly determined without such consideration. It is incumbent on the courts to have regard to the offender's character and circumstances when considering proportionality and taking serious decisions on the matter of sentencing. Failure to do so could well result in challenge.

We will offer one other point on Part 1. There has been some support for including denunciation as a purpose of sentencing. Again, we are not convinced of the need for such an inclusion. We consider that offences and penalties exist, by their nature, because of society's disapproval of the offending behaviour. Therefore, it is the creation of the offence in the first place that addresses denunciation, while the purposes of sentencing — punishment, protection of the public and victims, reduction of crime, rehabilitation and reparation — are more practically focused.

The Chairperson (Mr Frew): OK, Andrew. Thank you very much for being so concise. I will bring you back to clause 1(4)(b):

To me, you have just outlined that that is about much more than character references and the ongoing raging debate about them. Am I correct?

Mr Dawson: Yes.

The Chairperson (Mr Frew): It should be the court that takes into consideration the offender's character and circumstances, and that is not the same as someone providing a character reference that would then be used or read out in court.

Mr Dawson: Yes. It includes the whole of the person's character.

The Chairperson (Mr Frew): Is the Department in a place where it could consider banning character references?

Mr Dawson: We have just launched a consultation. I should say at this point that I heard, just before I arrived here, that there has been some issue around the timing of the launch of our consultation vis-à-vis your advance sight of it. We are looking into the circumstances of that, but, today, I can only apologise for it. Unfortunately, these things occasionally happen, and we mean no disrespect by them.

We do not propose an outright ban on good character references. Our consultation paper is on your agenda for next week, and we are happy to attend if you want us to speak to it then. We state in that paper that there are difficulties with an outright ban on good character references. One such difficulty is the impact of the European Convention on Human Rights and the right to a fair trial, which includes being able to put up a defence for the defendant. There is also a need to recognise judicial discretion and independence and for the judiciary to consider those matters sometimes. We explain that in the consultation that came out today.

While we are not considering or recommending an outright ban, we are looking at other options: for example, the requirement in Ireland that good character references are provided by the referee on an affidavit and subject to cross-examination. That is not perfect — for example, it does not remove the retraumatisation element of a victim having to sit through a good character reference — but it would make people think before they provide a character reference. It is open to challenge. Our work on that has indicated that, unfortunately, there are no perfect solutions.

The Chairperson (Mr Frew): OK. Thank you. I acknowledge your apology about giving the Committee its place with regard to the information that went out today. We should get information like that in a timely fashion before it goes out, but I accept your apology. Thank you very much for that.

Ms Egan: I want to follow up on that, because it is a really important issue. I am glad that the Department got the consultation out as soon as it could, because a lot of people care about this. I noticed, on the Department's website, that the Department is looking to see what changes could be made during this mandate. I am heartened to see that. Can you explain further the difference between providing evidence on someone's character during a trial and providing that evidence once the person has been convicted? Good character references are still read out during sentencing. It is particularly traumatising for the victim when someone has already been convicted and a good character reference is read out, as happened in high-profile cases that we have seen. In the case that I am thinking about, it said that the person was a good Christian and family man. That can be incredibly traumatising, especially post-conviction. Are you looking at that?

Mr Dawson: It is, indeed, traumatising. The consultation focuses on good character references at the sentencing stage rather than the trial stage. We have said that we will necessarily have to come back, in the next mandate, to considering good character references at trial. This is about sentencing. We absolutely acknowledge the traumatising effects on victims of hearing a good character reference. What we are trying to do, essentially, is put more rules around good character references. Having considered an outright ban, we just do not think that that is workable.

Ms Egan: If the consultation responses that come back are overwhelmingly in favour of an outright ban, what would the approach be?

Mr Dawson: We would certainly take those away. The Minister has stated that, if there is an easy solution that we can take forward soon, we will do that. If, however, following public consultation, we find that we are not able to make a relatively straightforward legislative move, we will necessarily have to defer that to the next mandate.

Ms Egan: The Committee has received evidence from organisations on the "Purposes and principles of sentencing". The witness who presented before you mentioned the "sparing use of punishment". The Commissioner Designate for Victims of Crime mentioned denunciation, which you referred to in your opening remarks. Have you engaged with those organisations? Did they put to you their thoughts about not including those?

Ms Angela Bell (Department of Justice): I can talk about the "sparing use of punishment". We covered that in the original consultation back in 2019-2020. It raised concern amongst the 29 respondents to that particular part of the consultation. While everybody agreed that punishment is necessary, punishment does not always mean incarceration, and that causes confusion. It is incarceration, really, that needs to be used sparingly where there are suitable alternatives. Having taken those views on board, and also being aware of the existing legislative provisions that require the courts to impose a custodial or even community sentence on an offender only when the court is of the opinion that the offence is so serious that it warrants such a sentence, it seemed to us that a safeguard was already in place in legislation. We considered that the proportionality principle also covered that to an extent. On the basis of all those reasons, we decided not to include the "sparing use of punishment" as one of the principles.

Ms Egan: That is appropriate. Thank you.

Ms Sheerin: Thanks to you all for coming in. On Part 1, you have spoken about your view of character references. Can we go into that in a wee bit more detail? There are differing thoughts around that. Connie mentioned people being able to use a character reference post-conviction. We have heard very clearly from those who represent victims of domestic and sexual violence about the damage that that does. I wonder about the message that we are sending if we are looking at not having an outright ban on good character references. That could feed into rape myths and the victim-blaming culture where somebody presents as a "street angel" — as, I think, Patsy referred to them the other day — who could not be capable of such a crime when, in fact, they are a "house devil". Could we have a wee bit more detail on your thinking? It is out for consultation, as you say, and you are not proposing an outright ban. What is the Department's objective?

Mr Dawson: There are a few options for change in the consultation, the first of which is the one that I mentioned: requiring a good character reference to be provided on an affidavit. That would put a more formal process around the good character evidence in that it would have to be in the form of an affidavit and be sworn and then be open to evidence and cross-examination. Going through that process is less easy than simply writing a good character reference and submitting it to the court. Alan, do you want to mention the other options?

Mr Alan Weir (Department of Justice): That option is based on experience in Ireland, where those types of requirements were introduced for good character references in serious sexual offence cases. Since the start of September this year, I think, that has been broadened to cover all indictable offences. That is option 2 in our consultation.

Option 3 is based on experience in Australia, where the states of New South Wales and Queensland have reformed good character references. Those states focused on the mitigating effect of character at sentence and sought to restrict its effect at sentencing. In Queensland, the restriction applies to sexual offences, and, in New South Wales, it applies to all indictable offences. That does not necessarily mean that the defendant cannot enter good character evidence in their defence. The good character evidence will not be taken into account when the sentence is determined or when mitigating factors are looked at, but the court can consider it in looking at prospects for rehabilitation or the potential to reoffend. Those are the models that we have seen in other jurisdictions.

The consultation document sets out our thinking on an outright ban and why we have not proposed that option. It is a matter for consultation, however, and we have heard a lot of views at the Committee.

Stakeholders have submitted evidence on the Victims and Witnesses of Crime Bill that proposes practical rather than legislative solutions to the problem. We have asked in the consultation for suggestions on those types of solution, because, the case law being what it is, it might not be possible to ban good character references outright, but there might be more practical, non-legislative options that we could take to lessen the impact on victims of having to listen to the references.

Ms Sheerin: OK. This is a more general question. Should I take it from your opening statement that you are not minded to change clause 1? You are happy with the purposes of sentencing as they are laid out in the Bill.

Mr Dawson: Absolutely. If the Committee or, indeed, the Assembly were to suggest any changes, we would obviously consider them in full. We are broadly happy with clause 1, but we will always listen and act accordingly.

Ms Sheerin: No bother. Thank you.

Mr Kingston: Thank you for your attendance today. The purposes of sentencing include, at clause 1(2)(b):

As you may be aware, we have heard evidence that "the protection of victims of crime" could and should be a specific stand-alone point in that clause, given that some crimes are targeted at individuals, particularly in cases of domestic and sexual violence. Such a measure would be much more specific than a general reference to public protection. We will consider that option. Do you have a view on whether there should be a separate point of "the protection of victims of crime"?

Mr Dawson: It is appropriate that victims are mentioned in the Bill. That was a fairly late addition, as I recall it, in the drafting process, when we recognised that doing so would send out an important signal. If the Committee or the Assembly were to suggest putting that point out on its own, I do not think that that would be a particular issue for us.

Ms Bell: Absolutely. Its inclusion in brackets was not meant to diminish victims' importance; if anything, it was intended to underline their importance by specifically referring to them as a particular group. As Andrew said, were there a different way of doing it, we would certainly be willing to consider that.

Mr Kingston: OK. I understand the desire to be concise, but, in highlighting certain crimes, it is very much about individual victims needing to be protected from the perpetrator.

Mr Dawson: It is important to send out a signal.

Mr Kingston: Yes. Clause 1(2)(d) specifies "the rehabilitation of offenders". During the previous session, it occurred to me that there is very little in the Bill, if anything, about rehabilitation. It is the Sentencing Bill so, obviously, it focuses on sentencing, but rehabilitation in order to prevent reoffending is an important aspect of sentencing and the justice system as a whole. Am I right in thinking that, apart from, perhaps, community requirements for suspended sentences, there is nothing specifically on rehabilitation in the Bill?

Ms Bell: That is correct.

Mr Kingston: Do you have any particular view on that?

Mr Dawson: It is notable and significant that that is one of the purposes as codified in the Bill. We can link it across to the changes to rehabilitation periods in the Justice Bill: those actions probably say more about our stance on the importance of rehabilitation. Again, however, we are certainly open to hearing from you about that.

Mr Kingston: OK. Thank you.

Mr Beattie: Thank you, guys, for coming here and answering our questions. I have to go back to character references, because it is, in many ways, an issue of public confidence. You will excuse me if I look at it in primary colours, but you have to do that sometimes in order for people to understand. When you get to sentencing, what is the purpose of a good character reference? What is the aim? What is it trying to achieve? In my mind, its purpose is to influence a judge to reduce a sentence. Is that what you see? I think that that is what the public sees.

Mr Dawson: In the broadest sense, the purpose of a good character reference is for the defence to put forward the best possible picture of the defendant. That can be distasteful. We are happy to come back to the topic in more detail at some point, but, in our consultation, we explain in detail the reasons why an outright ban may not be possible in this jurisdiction. In a nutshell, that is its purpose.

Mr Beattie: OK. I accept that there cannot be an outright ban for various different legal reasons. Let us look at it from a transparency point of view then. How much time comes off a sentence as a result of a good character reference? What happens if a good character reference is really well written using ChatGPT? How much time will come off a sentence? We all know what will come off a sentence for an early guilty plea or a late guilty plea. How much time will come off a sentence as a result of a really good character reference? Is that completely down to the judge?

Mr Dawson: It is down to judicial discretion. There is a need for a judge to have some regard to a good character reference, but I cannot remember seeing any particular judgements where it has been gone through scientifically and a period of the sentence reduction has been apportioned to the good character reference. That highlights one of the main problems when it comes to transparency on this issue.

Mr Beattie: Would you be supportive of good character references remaining and judges having to give regard to, and give time off a sentence due to, a well-written, ChatGPT good character reference? Should that be part of the sentencing remarks? Should the judge have to state in the sentencing remarks that they are giving the defendant, say, six months off their sentence because of a really good character reference?

Mr Weir: It is important to highlight that the courts have considered that aspect of sentencing practice in quite some detail. I do not want to oversimplify their position, but the more serious an offence is, the less of a mitigating effect the character of the defendant, not just a good character reference, is likely to have. That is very clear in the judgements that have been delivered. It is, however, also clear that that is not an absolute rule. There may be extreme circumstances in which the character of the defendant acts as a mitigating factor, but, to return to my original point, it is not likely to do so in the most serious offences.

Mr Beattie: Yes, and that takes me back to my point about transparency. How can the public have confidence in the system, if it is left to a judge's discretion without the public understanding the decision or having that information? Imagine that you were a victim: it is even worse for the victim, because, for example, they do not know whether a sentence became a lenient sentence as a result of a good character reference. You can see the real issues there. I will put my cards on the table: I do not think that there is any place for good character references in sentencing. That is my position, but it is really interesting to try to understand it.

Ms Bell: It is important to bear in mind the complexity of the process that the court goes through in determining a sentence. The court has to factor in multiple considerations. We do not have a mathematical approach to sentencing here. The court takes into consideration all the circumstances and weighs up the benefits, the public interest and the rights of victims and defendants. It comes to a decision having gone through a complex process.

Mr Beattie: It is incredibly complex. For a layperson, it is impossible to understand and get into. That is one of the reasons that I believe in a sentencing council, but I will not go down that road at this moment.

Mr Dawson: In announcing the consultation today, the Minister outlined her concerns with the process, and we share those concerns. Essentially, we are now trying, at the end of an Assembly mandate, to reflect the concerns that have arisen from recent cases and do something, but we totally acknowledge that we will have to revisit those in respect of the trial and sentencing stages. We are looking at whether we can do anything to improve or maintain public confidence, before we look at the issue more thoroughly in the next mandate.

Mr Beattie: Fair enough, Andrew. Thank you.

The Chairperson (Mr Frew): I will not let that point go. Doug has pushed for a sentencing council. Can you tell us why you do not think that it is a good idea?

Mr Dawson: We do not think that we need one. We think that the amount of contact with the judiciary and the way that the practice is at the moment does the job for a small jurisdiction such as Northern Ireland. Further, establishing a sentencing council would have resource implications, and it would come down to an assessment of those resources. Angela or Alan might outline the position further and the principles of it.

Ms Bell: Those are the key points. As it stands, the Judiciary NI website has a list of published sentencing guideline judgements and the sentencing guidelines for the Magistrates' Court. There is a lot of information there about how courts come to their conclusions. As Andrew said, this jurisdiction is such a small size, compared with our neighbouring jurisdictions, that providing training is a matter for the Judicial Studies Board. That can be done in a room with nearly all the judiciary present — that is how small the jurisdiction is. There is not the same geographic difficulty of trying to get people together or issues with very different practices developing in different areas. On top of that, as we said, the potential resource implications would be substantial, if we were to —.

The Chairperson (Mr Frew): Do you have a figure for us?

Ms Bell: The running costs for the Sentencing Council for England and Wales (SCEW), according to its annual report from last year, were about £2 million. That does not include set-up costs. In Scotland, the running costs were just over £1 million for the most recent business year.

Ms Ferguson: Clause 1(4) contains the definition of "proportionate". Will you explain what consideration was given to including the harm caused or the culpability of the offender in committing the offence?

Ms Bell: Andrew touched on that in his opening remarks. Clause 1(4) states:

In our view, "seriousness" in itself is made up of the culpability of the defendant and the harm caused to the victim. We therefore did not think that it was necessary to be explicit and explain what "seriousness" meant, and that is why we have not touched on it in that definition. We wanted to keep the clause as simple as possible and refrain from overcomplicating it. Including extra wording could lead to challenge and might cause confusion, so we thought that relying on the understood meaning of the terms was the better way in which for us to proceed with the drafting.

The Chairperson (Mr Frew): On that point, Kevin Brown said that it departs from convention and form. That is quite strong when talking about legislation.

Ms Bell: It is, but we do not have a statement of purposes and principles at the minute, so there is no form for us to depart from. The purposes that we have set out very much mirror the purposes that have been set out in the English legislation, so we were content that what we had done was satisfactory.

The Chairperson (Mr Frew): Brian, do you want in on that point?

Mr Kingston: Yes, if we are dealing with the sentencing council issue. Are we covering all of Part 1?

The Chairperson (Mr Frew): Part 1, yes. I will let Patsy in first and then bring you in.

Mr Kingston: That is fine, Chair.

Mr McGlone: It is the same question about the sentencing council that I asked in the previous evidence session. I have just read an article in 'Scottish Legal News' reporting on an analysis by an academic, Dr Graeme Brown, in which he condemns the sentencing watchdog, the Scottish Sentencing Council (SSC) as being a "monument to inertia" that saw staffing costs rise by 355% and overall spending increase threefold, as he analysed it, to no avail. Have you done any comparative analysis of sentencing councils? I know that Doug is a big fan of having one here. I would like to drill down and see how effective you have established the practice is. I am not talking about personnel. I am not going there. I am talking about the way in which sentencing councils work, because there is also some criticism in the article of rape sentencing and of how dilatory the Scottish Sentencing Council has been in making any meaningful progress.

Mr Dawson: We have done an assessment of the general pros and cons of having a sentencing council. I do not think, however, that we can say that we have gone into anything in further detail.

Ms Bell: We have considered the framework under which the Scottish Sentencing Council was set up and, obviously, how the Sentencing Council for England and Wales works. You may recall that, a couple of years ago, a guideline from the Sentencing Council for England and Wales to do with hostility to people of a different race had to be struck down. There was an issue with one of the guidelines that it had issued, and the High Court intervened, so sentencing councils are not always right. In Scotland, there is quite a lengthy process for developing and issuing a guideline. It has to go through development stage and consultation, and the Scottish Sentencing Council has to consult Scotland's equivalent of the Lady Chief Justice. A very quick solution will not be provided, so the question then is whether having a sentencing guideline council necessarily changes sentences.

Mr McGlone: Has it done?

Ms Bell: I have heard commentary that it does not.

Mr McGlone: Have you heard commentary, or have you analysed the Scottish Sentencing Council?

Ms Bell: I have not analysed it.

Mr McGlone: Would it not be useful for the Department to analyse how it has worked and establish some facts, rather than base its view on commentary?

Mr Weir: When Angela and Andrew spoke to that point, they set out the Department's position historically. At least twice previously, the Department considered the need for a sentencing council and concluded on both occasions that Northern Ireland did not require one. In the review of sentencing policy that the Minister announced earlier this year, however, sentencing guideline mechanisms were included as one of the topics for consideration, and having a sentencing council would be a type of mechanism. We are therefore looking at it when seeking to determine —.

Mr McGlone: I am trying to establish how you have looked at it. Looking at it as a concept is one thing, to my mind anyway, but sentencing councils function — that may be the wrong word — in other parts of these islands, depending on to whom you listen, because how functional they are is to be queried. Before you even agree on the concept, do you not think that it would be a better idea to see how they work in practice elsewhere to determine whether there are shortcomings and, if there are, where those might be tweaked, if possible?

With the greatest respect, you said that the Department looked at the issue and concluded that one is not needed, but I would like to hear the basis for that. Rather than be told that the Department has arrived at a conclusion, I would like to know why the Department arrived at that conclusion. If it is the case that you looked at Scotland, and, as that gentleman said, the sentencing council there is a "monument to inertia", and if you have looked at others that are not effective, that is the kind of evidence that I would like to hear so that I know that the Department had grounds for making its decision. Can you come up with that evidence, please? It would be useful for me. Do you get what I am on about?

Mr Weir: Yes, absolutely.

Mr McGlone: In other words, if you are presenting something, you need to have evidence for it. That is how I look at it.

On Tuesday morning, Mr Weir, your name came up during conversation with Ms Duddy. The evidence that we received from her and the other ladies about their families was heart-rending. She seemed to think that the process with the Department — she specifically mentioned you — had not been rounded off or concluded. Are you prepared to comment on that?

Mr Weir: On the process for Jasmin's law? Pauline is campaigning for it.

Mr McGlone: The dialogue with the Department.

Mr Weir: We have commenced work on the review. That includes consideration of Jasmin's law. I have been in contact with Pauline throughout the process. We have sought to gather sufficient evidence to allow us to decide on the practicality and legality of introducing something equivalent to Jasmin's law. Those are the two key considerations for us. First, we have to determine whether it would be legally possible for us to legislate in that space, given that drugs misuse offences and drugs misuse policy are reserved matters, so we need to be absolutely certain about what we can and cannot do there. Secondly, the aggravator model that Pauline has pursued, which I discussed with her when I met her, changes slightly how those offences would be enforced. Drugs misuse offences are, by their nature, offences against the state essentially, where somebody is being prosecuted for something that they have done but not necessarily for something that they have done to someone else, in would be the case for an offence against the person. The model that Pauline proposes would change that slightly, because it requires the prosecuting authority also to evidence the impact on an individual. That is something that we also need to consider.

Mr McGlone: You have explained that to us here, but, based on nuance, I got the impression from her, and perhaps others did as well, that she felt that Jasmin's law had been left in limbo. How many times have you engaged with her?

Mr Weir: Pauline emails me every couple of weeks. She has my personal mobile number.

Mr McGlone: I am not asking you how many times she sends you emails. I am asking you how much actual engagement there is between her and you or other members of the Department.

Mr Weir: I have met Pauline twice this year to discuss it, and our team is working on the review throughout the year. If Pauline is under the impression that we are not doing any work, I will probably need to clarify that with her.

Mr McGlone: To be honest, I think that a phone call might help.

The Chairperson (Mr Frew): Brian, do you want in on Part 1?

Mr Kingston: Yes. Clause 2 has captured a lot of the purpose of the Sentencing Council for England and Wales. There is a reference to the Lady Chief Justice's sentencing group and to the various sentencing guideline judgements.

It would be useful for us to get a reply about how the Department has considered the suggestion to have a sentencing council and what its opinion in. One of the things that has been talked about is monitoring of the application of the guidelines. I am interested to know, either now or in your written reply, how that monitoring takes place. Is it done by the Lady Chief Justice's sentencing group? Does the sentencing group just set out previous judgements that are to be used as the guidelines, or does monitoring take place? Obviously, there is also the Court of Appeal, and, ultimately, people can go to the Public Prosecution Service (PPS) if they are concerned about a sentence. How is that monitoring role performed?

Mr Dawson: If you do not mind, we can set that out in a reply to you.

Mr Kingston: OK. Thank you.

The Chairperson (Mr Frew): That is quite important to know, because we do things differently here regarding case law and judgements. That informs the practice and the comparisons. It is therefore not just guidance from the Lady Chief Justice's sentencing group but any judgement from the Crown Court and the Court of Appeal. That was quite a good question, Brian.

I will tie up a couple of loose ends in Part 1 before we move on. In clause 1(2), which is on the purposes of sentencing, do you perceive paragraphs (a) to (e) as being ranked, with paragraph (a) being the most important?

Ms Bell: We do not.

Mr Dawson: We do not. The order does not reflect their importance.

The Chairperson (Mr Frew): Right, OK. We were concerned about that. I will take you to (e), which is:

What do you mean by that?

Mr Dawson: We discussed that among ourselves in the past week as well. One of the things that we discussed was that it perhaps means reparation by offenders to society, almost to recognise the seriousness of the offence.

The Chairperson (Mr Frew): Although it states that it is specifically:

Mr Dawson: Yes, and we were discussing whether making reparation to society might be better.

Ms Bell: Reparation includes both. You have heard from various people about the restorative justice aspects, but reparation is more than restorative justice. It includes things such as community sentence orders, whereby the defendant is required to go out and take graffiti off walls or help tidy up common areas.

The Chairperson (Mr Frew): In layman's terms, one could say that it is repaying a debt to society or to a victim.

Ms Bell: That is exactly what it is: making amends for the harm done.

The Chairperson (Mr Frew): Is it specifically financial remuneration?

Ms Bell: Not necessarily.

Mr Kingston: It can include that, however. There can be a financial penalty to be paid to the victim.

The Chairperson (Mr Frew): Yes, so a financial penalty could be paid to the actual person affected by the offences. Is there not a danger that, in a domestic violence setting in which financial coercive control has been used, that could be seen as another front being opened up by the offender against the victim?

Ms Bell: I will have to think about that. I am not sure —.

The Chairperson (Mr Frew): If, for some reason, a payment plan were put in place to repay, that in itself might become another front of coercion, or at least a mode of getting back at the victim through halting or stopping the payment plan. Even the fact that the offender was having to pay someone would mean that they were still connected to them.

Ms Bell: So many different circumstances can present, and it is really the job of the court to decide what is appropriate in those circumstances. Hopefully, the court would pick up whether that would be a worthwhile order to make.

The Chairperson (Mr Frew): OK. I will move on to clause 2: The PPS is concerned about the clause. It said in its evidence that it could result in longer sentencing remarks and create more grounds for appeal, given the:

We all know that the spirit of the clause is to help with transparency and everything else, but the PPS was very clear that it was concerned about that, because, if everything has to be in longer sentencing remarks, it would open up the potential for an appeal. Is that a danger?

Ms Bell: It is always a danger. No matter what the court says, if a party does not agree with it, there is an opportunity for appeal.

The purpose of the clause is to encourage clarity, transparency and an understanding of sentencing. A byproduct of that desire may be that we have longer sentencing comments, which would then create potential delay — more so than we have at the minute — because the court would have to take that extra step. It is something on which the Assembly will have to decide. What does it want more? Transparency, clarity and understanding or cases to be dealt with more quickly? The courts are well experienced in dealing with the legalities of sentencing.

The Chairperson (Mr Frew): How will clause 2 affect the Magistrates' Court?

Ms Bell: That is where it may have most impact on the day-to-day court process.

The Chairperson (Mr Frew): Is that a positive or a negative?

Ms Bell: Again, it is a question of balance. Do you want more information, more clarity and more transparency or for things to continue at speed in the way in which they do in the Magistrates' Court? The genesis of the Magistrates' Court was to deal with things quickly in a summary fashion.

The Chairperson (Mr Frew): Complaints come to me about the fact that people cannot access written judgements or sentencing remarks. Does clause 2 deal with that?

Ms Bell: No, it does not. In the Magistrates' Court at the moment, people never get a written judgement. That just does not happen. The Crown Court and the Court of Appeal will provide written judgements. I know that work is going on in the Department to address the matter of victims being able to get a written copy of a judgement.

The Chairperson (Mr Frew): It strikes me as really important that people have that ability.

Ms Bell: I agree, because we all know that, in the moment, victims are confused and shocked and may not take in what is being said, particularly given the difficulty of the language that is used. That is why we have Victim Support and other bodies. They provide that help to victims, explain things and guide them through the process.

The Chairperson (Mr Frew): Why did you use the word "must" in clause 2? Clause 2(1) begins, "A court must".

Ms Bell: That is balanced against the ability of the court not to follow sentencing guidance if doing so is in the interests of justice. It is about encouraging transparency and clarity while not fettering the court's discretion absolutely. If there is a reason not to follow the guidance, it can therefore do what is right.

The Chairperson (Mr Frew): OK. Thank you. There are no more questions on Part 1, so we will move on to Part 2, which is titled "Suspended sentences" and takes in clauses 3 to 17. Do you wish to make any opening remarks on Part 2?

Mr Dawson: Very briefly, Chair. The introduction of a power to allow the courts to attach community requirements to suspended sentences has been widely welcomed. It is important to note that, although they are lengthy, as you referenced, Part 2 and the accompanying schedules 1 and 2 are essentially a restatement of the existing law on suspended sentences, which is largely replaced by Part 2 and has been adjusted as necessary to allow for the inclusion of community requirements and a replication of relevant existing community sentence provisions. The change is effectively the introduction of a power for the court to combine existing elements of community sentences with suspended sentences as they exist at present, with the intention of creating an additional and more flexible sentencing option for the courts.

We know that that will have a financial cost. As is highlighted in the explanatory and financial memorandum (EFM), and in response to questions, we have confirmed that the introduction of community requirements as an option for inclusion with suspended sentences is expected to have significant cost implications, particularly for the Probation Board. That assessment was based on a preliminary costing exercise that we undertook prior to the Bill's introduction. We shared those details with the Assembly's Research and Information Service (RaISe) in correspondence ahead of its appearance before the Committee in May. The explanatory and financial memorandum further confirms that those costs will be reviewed and be subject to a full and up-to-date costing exercise ahead of implementation.

Finally, in evidence to the Committee before the summer recess, the Probation Board gave a further indication of the possible costs to implement the provisions. A fully detailed business case will be needed and will form part of the implementation plans for the Bill on completion of Final Stage. With those costs and implementation requirements in mind, the Bill provides for Part 2 to be commenced by departmental order.

The Chairperson (Mr Frew): OK. Thank you.

Ms Egan: Thanks, Andrew. You have covered the gist of the questions that I was going to ask. We have heard evidence from people who have warned us about the cost. Although the cost may be overwhelming, the introduction of suspended sentence orders (SSOs) is seen as something quite positive for the justice system. Has the Department secured any additional funds for SSOs? If not, will their introduction be delayed?

Mr Dawson: We have not yet received any additional funds for the provisions in the Bill. We will need to cost them. Given our limited staffing resources, we have concentrated on getting the clauses drafted, getting the consultation done and preparing for the Bill's Committee Stage. It should be noted, however, that no Budget having been set for this year makes it difficult to make a case for such things, which are still in the development phase. It is certainly our intention to make a robust and evidence-based case for further resources when the Bill gets to Final Stage.

Ms Egan: The NIACRO representative pointed out earlier that, where additional orders are imposed on people who have received suspended sentences, potential breaches of those orders could ultimately result in more people in the prison system. We already know that prison capacity is almost at its limit in Northern Ireland.

Mr Dawson: That would be a matter for the court in each case.

Ms Bell: If somebody were to breach the community requirement of the suspended sentence, or the suspended sentence itself, one of the options that the court would have is to put the suspended sentence into effect immediately. In fact, the court would be required to do that, unless there were reasons not to. The hope is that having a suspended sentence is enough of a deterrent to prevent further offending. The application of the community requirement is something that is intended to help the defendant address their offending behaviour. With any luck, it will reduce the likelihood of their further offending. There is also the possibility that the new provisions may help the court in borderline immediate custody cases. If the community requirement can be applied, there is more support for the defendant and therefore more of a reason to suspend the sentence rather than impose an immediate custodial sentence. Potentially, we will see a small drop in shorter custodial sentences, but that will depend on how the courts apply the provisions once they are in force.

Ms Egan: OK. That is grand.

The Chairperson (Mr Frew): Let me stay on that point. We therefore have to look to schedule 2. Connie asked whether a custodial sentence is to be imposed when a suspended sentence is breached. Paragraph 8(1) of schedule 2 states:

It goes on to specify other requirements. Is that, in essence, where someone who breaches the SSO can go to jail?

Ms Bell: That is exactly it, yes.

The Chairperson (Mr Frew): What is meant in paragraph 8(1)(a) by:

In my eyes, a suspended sentence means that someone is not going to jail, but it reads there:

Ms Bell: That is the terminology that is already used in existing provisions. We have updated the existing provisions and consolidated them by putting them into the Bill. There is therefore nothing very new in the provisions. A suspended sentence is a custodial sentence. It has just not taken effect, because it has been suspended. That is the other side of that balance.

The Chairperson (Mr Frew): How common would it be for a court to order that a suspended sentence takes effect with a lesser term? Perhaps, courts do not have those vires.

Ms Bell: I do not have any figures on that.

The Chairperson (Mr Frew): At the moment, if someone gets a suspended sentence, it is a suspended sentence. There is no order or other requirement. It is just a suspended sentence.

Ms Bell: That is right.

The Chairperson (Mr Frew): If, however, the person does something that activates a suspended sentence, surely it should be the full sentence.

Ms Bell: The court may take into account the length of time that had passed since the sentence was imposed. The person may be very close to the end of the activation period.

The Chairperson (Mr Frew): That is why someone gets a suspended sentence for a period of so many years.

Ms Bell: Exactly.

The Chairperson (Mr Frew): Do you think that there is a differential as someone goes on that journey?

Ms Bell: It is possible. It is one of the things that the court may take into account. There may have been a change of circumstances that militates against the full length of the sentence being served. Again, it is a matter for the court to decide, based on the unique circumstances of each case, but it is there as an option.

The Chairperson (Mr Frew): OK. Thank you.

Mr Kingston: I welcome the inclusion of community requirements in suspended sentence orders. It is important that something other than the suspended sentence be seen to be given. Community requirements also support rehabilitation. We heard from representatives of community and voluntary groups that are involved with restorative justice that, although they are sometimes named, they feel that it does not happen often enough. Sometimes, they are named in the sentence as being responsible for the community requirement. The Bill will probably increase the number of times that those groups, as well as probation services, are involved with community requirements. To your knowledge, have the groups in the community and voluntary sector lived up to their responsibilities? Those groups would be responsible for reporting a breach of the conditions that were set down in someone's suspended sentence order, which could result in their being incarcerated. Is the Department satisfied that those groups are willing to take on that responsibility and also that it is appropriate to give it to groups that are based in the community?

Mr Dawson: The Probation Board may be better placed —.

Ms Bell: The legislation names the responsible officer and sets out their duties. The responsible officer will be responsible for the supervision of the offender, and they will always be a probation officer or someone who is employed and nominated by the Probation Board. That is where the safeguard is, because probation services do all the work around breaches and returning people to court.

Mr Kingston: It goes with the territory that they have that responsibility. It is not just a voluntary arrangement but a ruling of the court, so any breach will have a serious consequence for the offender.

Ms Bell: Absolutely.

Mr Kingston: Connie has already touched on my next question. You said that there will be increased costs owing to the increased number of community requirements. Paragraph 90 of the EFM states:

Can you stand over that comment? Does that mean that you expect savings to come from elsewhere in the Bill?

Ms Bell: If you read on, you will see that paragraphs 91 and 92 give further information. Paragraph 92 in particular highlights how the community requirements element will have:

Before implementation, they:

Mr Kingston: OK, but paragraph 90 still states:

It is a genuine question: are savings expected to come from elsewhere in the Bill? Although sentences will be increased in various cases, will the Bill result in fewer custodial sentences?

Ms Bell: In an ideal world, suspended sentence orders with a community requirement will lead to fewer incidences of reoffending, which will potentially be a cost-saving measure for the justice system. Beyond that, however, we could not see any particular hard costs involved in the rest of the Bill's provisions.

Obviously, there would be IT changes and training costs, but we think that those would be absorbed in the normal run of business.

Mr Kingston: This is a genuine question: is there a desire in the Bill to reduce custodial sentences?

Ms Bell: It was not one of the original intentions when we consulted six years ago. The landscape has changed since then, but, at that time, we were more interested in rehabilitation and preventing reoffending. The Bill was not designed to reduce the number of short custodial sentences that are imposed.

Mr Kingston: OK. Thank you.

The Chairperson (Mr Frew): On Part 2, then, to tidy up, how do you explain a suspended sentence order to a victim? Should there be a requirement in that Part of the Bill, as there should be in others, for it to be explained in ordinary language to a victim what a suspended sentence order is, why it was given out, and the community requirements around it? It is a plus, because obviously, when people get suspended sentences now, that is seen as their getting off with a slap on the wrist and all of that. There is a community requirement now, but have we missed something by not explaining that to victims and witnesses?

Ms Bell: I think that the explanation to the offender will be clear and direct and should be easily understood by anybody in the court.

The Chairperson (Mr Frew): OK. We will probably come on to that in Part 3, which is the life sentences piece, but it is still the same logic to me: there might be a miss there when it comes to informing victims and witnesses. There is a duty in open court —

Ms Bell: Yes.

The Chairperson (Mr Frew): — but —.

Ms Bell: Then again, we have other mechanisms to help and support victims.

The Chairperson (Mr Frew): OK.

Do you think that it is a good idea to include domestic abuse and sexual offences in community requirements, or is that left to judges' discretion?

Ms Bell: Again, that is a matter for the judiciary. It is so hard to try to envisage a class of offences that would all fall into an exclusion, because we really do not know what circumstances could present. It may be beneficial to have a suspended sentence with a community requirement, and it would be wrong to take that discretion away from the judiciary.

The Chairperson (Mr Frew): OK. What does "community requirement" mean to you? Is there a list?

Ms Bell: There is a list, yes.

The Chairperson (Mr Frew): Is there a list currently?

Ms Bell: Yes. Schedule 1 talks about community sentences, such as unpaid work. The rest of the requirements are found in the Criminal Justice (Northern Ireland) Order 1996, which sets out all the requirements that can be attached to a probation order, which we have imported into the Bill. The other option is a curfew or an electronic monitoring requirement, which is set out in the Bill as well.

The Chairperson (Mr Frew): Is that the monitoring of the offender?

Ms Bell: Oh, yes.

The Chairperson (Mr Frew): Is there a geographical piece in this, such as the proximity of a crime to where the victim lives? Is that built in?

Ms Bell: Yes. Again, the court can impose a residence requirement, so that could be taken into consideration if a residence requirement were to be imposed.

The Chairperson (Mr Frew): OK. Why did you go for the five-year and seven-year limits for SSOs?

Ms Bell: That reflects the current position. At the minute, a sentence of not more than seven years can be suspended for between one year and five years, and a sentence of not more than two years can be suspended for between one year and three years.

The Chairperson (Mr Frew): So they fit within the current —.

Ms Bell: That is exactly what we have at the minute. It also fits with the definition of a serious offence as being an offence that can have more than five years as a maximum sentence. Again, that has been taken exactly from the current legislation and rewritten here.

The Chairperson (Mr Frew): Have we completely abandoned enhanced community orders (ECOs) for sentences of fewer than 12 months?

Ms Bell: We have not abandoned ECOs. I heard the evidence that was recently given to the Committee.

The Chairperson (Mr Frew): Restorative justice?

Ms Bell: Yes. The funding for those providers has ceased, but ECOs continue, and the Probation Board are in-house providers. It is not the case that ECOs are not being used any more.

The Chairperson (Mr Frew): Are they still being utilised?

Ms Bell: They are still being used and rolled out.

The Chairperson (Mr Frew): They just do not have the restorative justice element to them.

Ms Bell: It uses different providers. There is a restorative justice element; it is just that the provider is different.

The Chairperson (Mr Frew): OK. That is interesting. They do not need to be included in this Bill to have effect.

Ms Bell: No. ECOs are already provided for in the 1996 Order, which is a combination order with elements of probation and community service. The courts and the Probation Board have worked together to develop a more impactful version of that, but it does not need any further legislation.

The Chairperson (Mr Frew): OK. Thank you. Emma, I did not realise that you wanted to ask a question.

Ms Sheerin: It is OK, Chair. I came in later, and you touched on it in the next question that you asked. I want to follow up on suspended sentences, particularly with regard to the restorative justice methods. We heard very clearly from representatives of the charities who work with the victims of sexual violence and domestic abuse that they do not feel that those measures are appropriate. Obviously, there is a reference to "serious crimes" being eligible for a suspended sentence order. Can you comment on that?

Ms Bell: This framework is exactly what we have at the minute, so we are not changing when a suspended sentence can be imposed. We think that that is the right thing to do.

Ms Sheerin: Thanks.

Mr Kingston: The community requirements have a lot of detail about unpaid work. Can it include a requirement that someone has to undergo some sort of corrective programme, such as tackling addiction or anger management? Is that specified in the Bill?

Ms Bell: Again, this is a mixture of existing community sentences and suspended sentences, and we did not tinker with the requirements that can be attached to a probation order, because they did not need any adjustment to fit in with the Bill. We had to make adjustments to the community service orders in schedule 1 so that they would fit properly with the suspended sentence framework. It is a mixture, and the activity requirements could include drug addiction. There are also residence requirements and alcohol and drug rehabilitation requirements as set out in the 1996 Order, which is where community sentencing is held.

Mr Kingston: So it is in that other legislation, and it still applies?

Ms Bell: It is in that, and it is referenced in the Bill that that part of the 1996 Order applies to suspended sentence orders for the purposes of this legislation.

Mr Kingston: OK. There could be things like addictions, but also where people can live and where they can go.

Ms Bell: Where they can go, what they should do and what they should not do.

Mr Kingston: Thank you.

The Chairperson (Mr Frew): That wraps up part 2 of the Bill. No other member has indicated.

Part 3 is a very small part of the Bill, although it is very important. It is on life sentencing and takes in clauses 18 and 19. Do we have any commentary on that before we kick off the questions, Andrew?

Mr Dawson: Very briefly. To reiterate, Part 3 introduces the important requirement for the court to explain in ordinary language the reason for and effect of the tariff it sets when imposing a mandatory life sentence. The duty has been welcomed, albeit we recognise that some victims' representatives would like to see the duty extended to include a duty to explain it to victims. It is hoped that the requirement will help the public to understand the nature of a life sentence and dispel the myth that a life sentence must, in all cases, mean custody for the remainder of the offender's life. Part 3 also introduces schedule 3, which, for the first time in Northern Ireland, sets suggested starting points in statute, as well as outlining potential aggravating and mitigating factors. It sets the starting point at 20 years for murders where the seriousness is considered to be exceptionally high and 15 years for all other cases, except those where a whole-life tariff is necessary.

The duty created in clause 19 is for the court to have regard to the principles set out in the schedule. Therefore, the court will retain its discretion to select a higher or, indeed, potentially lower starting point, meaning that all murders will continue to be considered on their own unique facts. That is vital for these most serious cases.

The Chairperson (Mr Frew): OK. Thank you, Andrew. At clause 18, there is a duty that:

I am sure that we all agree with the "ordinary language" piece, but should there be another limb of the duty for victims and witnesses, or do you think that:

is sufficient?

Mr Dawson: We think that stating in open court is sufficient, in ordinary language.

The Chairperson (Mr Frew): Would you be open to an amendment in that regard?

Mr Dawson: We are certainly open to any considerations that you have.

The Chairperson (Mr Frew): I will explain why I say that. It might not need its own limb. Look at the inserted article 5(3A)(a):

You could actually have:

You would be specifically, as you have done in the other part in brackets, putting "due regard for victims and witnesses" in there, in open court.

Mr Dawson: Again, it will be entirely open to Members to propose that, and, should the Minister be responding to that, we will have explained our original thinking and why we went the way that we did, but we can certainly give consideration to any further amendments.

The Chairperson (Mr Frew): OK. Thank you. The other issue that I have about the life sentences is where a child is present at a murder. Should that be added to the list of aggravating factors?

Ms Bell: It is not set out in the aggravating factors that are listed, but the list is not exhaustive, and, if a child was present, the court would undoubtedly take that into consideration.

The Chairperson (Mr Frew): At the minute?

Ms Bell: Yes. Again, it is a question of how prescriptive we want to make the list of aggravating factors and whether we are content that the court, when it has all the reports, will take into consideration all the circumstances of the case.

The Chairperson (Mr Frew): OK. Do any other members wish to come in on Part 3, "Life sentences"?

Mr Beattie: New article 5(3A)(b) inserts the words:

What do we do if the offender does not come to court? Is there room to provide that the court must explain that to the offender in court, making the case that he must attend?

Mr Dawson: Again, we can certainly look at that. We considered the general issue of requiring attendance in court as part of this.

Ms Bell: We have not come across any instances in Northern Ireland where that has been an issue. There have been cases across the water, but the Commissioner Designate for Victims of Crime said in her evidence that there had not been any such cases here. It does not seem to be an issue.

Mr Beattie: In case it does become an issue in the long term — it only takes it to happen once for it to become an issue and hit the media — can the Bill be future-proofed to address that? If you did future-proof it and he failed to attend or attended but was abusive, would the judge be allowed to increase the sentence?

Ms Bell: I do not want to speak for the judiciary.

Mr Beattie: No?

Ms Bell: It seems to me that that might be a different kind of offence — more a contempt of court type of thing. It would not change the seriousness of the offence he was in front of the court for. Those are just my thoughts. When it comes to that provision, the defendant's legal representatives are bound to be in the court, and the outcome of the hearing is obviously conveyed to the offender.

Mr Beattie: Fair enough. I am just exploring that with questions. Let me explore something else, if I can. You will know that, at this time, there is a lot of discussion about whether an individual who has been given a life tariff sentence of 15 years should remain under court supervision for the whole tariff, in which case the argument is that he should not be allowed out unsupervised in the third phase of pre-release testing in order to adhere to that life order. You know that there is discussion about that. What are your thoughts on that one?

Ms Bell: The Prison Service is looking at that matter. I do not want to give any views on that particular issue. The Gary Anderson case is obviously very recent, and the Minister has answered Assembly questions about pre-release testing. Work is going on in the Department to see how that can be made more robust.

Mr Beattie: It does create a slight contradiction between the Life Sentences (Northern Ireland) Order 2001 and rule 27 — is it 27? I cannot remember what it is — of the Northern Ireland Prison Service. The 2001 Order says that you are not allowed out until your tariff — which, in essence, is the sentence — is complete but, under rule 27, the Northern Ireland Prison Service allows people out as part of pre-release testing up to three years before their tariff is complete. Is there a contradiction there? I know that you cannot talk for the Prison Service: I am asking you to talk for yourselves. Do you think that there is a contradiction?

Ms Bell: I would not want to comment without looking at the provisions in detail.

Mr Beattie: OK. Fair enough.

The Chairperson (Mr Frew): OK. No other member wants to talk about Part 3, but I am going to keep you there for one wee second. Schedule 3 inserts new schedule A1 to the 2001 Order. There is a starting point of 20 years, and then, if an offence does not fall within sub-paragraph 1(1), the appropriate starting point is 15 years. Is there not another starting point of 12 years where there is the killing of an adult arising from a quarrel or loss of temper?

Ms Bell: At the minute, the starting point that is found in sentencing guidance is 12 years in that scenario. We decided not to replicate that in the Bill because we thought that a starting point of 15 years would still allow the court the discretion to move up and down depending on the circumstances.

The Chairperson (Mr Frew): As it is not included in the Bill, are we basically superseding the 12-year starting point now and looking only at 20 years or 15 years?

Ms Bell: The statute will provide only for 20 and 15.

The Chairperson (Mr Frew): Right, but the judiciary has the discretion to come down.

Ms Bell: Yes.

The Chairperson (Mr Frew): OK.

The PPS expressed concern about subsections (j) and (k). It believes that they should be combined. Those are:

and

I think that it is because the whole essence of coercive control is contained in the Domestic Abuse and Civil Proceedings Act. What are your thoughts on those subsections being combined? Is there a rationale for why they are separate?

Ms Bell: Our rationale was that there may be occasions when there is no personal connection, yet there is controlling or coercive behaviour. We felt that it was important to have that distinction.

The Chairperson (Mr Frew): Yes. If we were looking at maybe a child witnessing a murder, this is the Part of the Bill that we would include it in.

Ms Bell: If you wanted to add a further reason for the starting point —.

The Chairperson (Mr Frew): Yes, the starting point of 20 years.

Ms Bell: Yes.

The Chairperson (Mr Frew): I am certainly interested in pursuing that. The Committee has not discussed it yet. I will put you on notice for that one.

Ms Bell: It could either be there or in the further list of aggravating and mitigating factors at paragraph 5.

The Chairperson (Mr Frew): Certainly. OK, thank you.

Nobody else wants to speak on Part 3. We will try to get into Part 4 and see how we go. Part 4 deals with unduly lenient sentences. It contains clauses 20, 21, 22 and 23. Any opening statement there, Andrew?

Mr Dawson: Again, very brief. These provisions have also generated a range of responses. Part 4 of the Bill is intended to simplify and expand the unduly lenient sentencing arrangements so that any sentence imposed in the Crown Court will be capable of being referred to the Court of Appeal as being unduly lenient. We consider that this brings much-needed clarity to the scope of the unduly lenient sentencing arrangements whilst, at the same time, respecting the boundaries of the Crown Court and the Magistrates' Court. We have listened to views that the arrangements should be extended further to include all Magistrates' Court sentences or the sentences imposed in Magistrates' Courts for hybrid sentences. We have noted, however, the evidence put forward by the Public Prosecution Service, which outlined the impediments and risks of such a change. The scheme was not designed with Magistrates' Court sentences in mind, and to extend the arrangements to sentences imposed in that court tier could have far-reaching consequences, possibly including the fact that the court is not a court of record; that it might introduce delay; that it might potentially lead to up-tariffing, which was suggested by NIACRO; and that there might possibly be a disproportionate increase in referrals, which could block or choke the system. That is my only comment by way of introduction.

The Chairperson (Mr Frew): OK. Thank you. It is no surprise that I will bring in Doug Beattie.

Mr Beattie: Andrew, I am genuinely confused about this. I thought that I understood it, even if I did not agree with it, but, after the evidence on Tuesday, I am now a little more confused. Clause 20(2)(b) quite clearly states:

That could be challenged as being unduly lenient. That is clear with me; I am happy with that. However, clause 20(3) goes on to state:

Summary trial is done in a Magistrates' Court, so that tells me that the unduly lenient sentence could apply to a Magistrates' Court's sentencing. Are we reading that wrong?

Ms Bell: Subsection (3) has to be read in its entirety; the conditions in paragraphs (a), (b) and (c) must all exist.

Mr Beattie: Right.

Ms Bell: The Department must have made regulations to specify the particular cases.

Mr Beattie: Can I clarify this for my mind? There is some confusion among stakeholders out there as well. To be absolutely clear, challenging a sentence for being unduly lenient can only be done with a case that is heard in the Crown Court or a sentence that is delivered in the Crown Court. There is absolutely no discretion for anything to happen in a Magistrates' Court. Is that correct?

Ms Bell: That is right, until such times as further regulations might be made. As it stands at the minute, yes.

Mr Beattie: That is clear, and that is what I thought was the case before Tuesday. I will be honest: I am one of these people who pushes for the hybrid piece. I just got confused. For me, that is what the Bill said, and I am now clear on that.

The Chairperson (Mr Frew): Given what you have written here and what you have explained with regard to clause 20(3), what would a hybrid model look like and how would it be written?

Ms Bell: At this stage, we do not have a model to include hybrid cases. If we were to extend the provisions to any sentences imposed in a Magistrates' Court, there would have to be very significant changes to the way sentencing is done in the Magistrates' Court, particularly for hybrid offences. It really could not be done under the current sentencing structure in the Magistrates' Court.

The Chairperson (Mr Frew): In many ways, it strikes me that it might be easier to just do away with hybrid cases and put them all to the Crown Court.

Ms Bell: That is another story altogether.

The Chairperson (Mr Frew): Yes, but it would be as big as that if we were to try to get unduly lenient sentencing into the sphere of the Magistrates' Court, even for hybrid cases.

Ms Bell: As I say, the Magistrates' Court by its nature is a court of summary jurisdiction, so there are no opening and closing submissions, nor are there any records of the evidence that is given through the trial. There are no sentencing remarks of any note. Some of those things in the full pre-sentence report are put into a dossier and considered by the PPS and the Director of Public Prosecutions himself, who decides whether there should be a referral. The Court of Appeal has to approve the application for leave. It is a highly safeguarded and high-threshold system. It is not just about court cases where the sentence seems low; it is for sentences that are outside the range of sentences that a court could possibly consider reasonable to impose. It really is a very specific power, and not one that was ever created to deal with lower-level cases, which is really what the Magistrates' Court is for.

The Chairperson (Mr Frew): OK. Doug, do you have any more?

Mr Beattie: No, that is fine.

The Chairperson (Mr Frew): No other members have indicated. Do any other members want to comment on the unduly lenient sentencing piece? We are just shy of 90 minutes, but I feel that this could be a good time to stop, if members and officials are agreed. We have covered the first four Parts of the Bill and there are another four to go. We are not exactly midway, but because of the serious and sensitive nature of Parts 5, 6 and 7, I would like to stop now and go at it afresh, if that is OK.

The Chairperson (Mr Frew): Christopher, I know that you will be disappointed, because we are coming on to your topics. [Laughter.]

I apologise for that. I hope that it has been useful for you to hear, as well as Alan, in some respects. This has been very informative and useful. Thank you very much for your attendance today. There was no doubt that you were always going to have to come back; it was just a case of where and when we could stop. I feel that this is a good point at which to stop before we get into some of the really sensitive and serious topics. Is that OK? Thank you.

Mr Dawson: Thank you.