Official Report: Minutes of Evidence

The Chairperson (Mr Frew): We are joined by Andrew Dawson, director of the Department's criminal justice policy and legislation division; Angela Bell, Bill manager and policy lead; Alan Weir, head of the Department's sentencing policy unit; Christopher McElwee, head of the Department's hate crime branch; and Karen McMinn, policy lead in the hate crime branch.

Thank you for your attendance; you are all very welcome. As per last Thursday's meeting, the Committee will take each remaining Part of the Bill in turn. The officials will have an opportunity to make some opening remarks, if they wish, on each Part, as we did on Thursday, which will be followed by questions from members before we move on to the next Part, if that is OK. At Thursday's meeting, the officials answered questions on Parts 1 to 4 of the Bill. Today's session is intended to cover Parts 5 to 8.

Part 5 is "Failure to disclose information about victim's remains". Without further ado, Andrew, I invite you to make some opening remarks on Part 5.

Mr Andrew Dawson (Department of Justice): Thanks, Chair, for your time again today. I will make a couple of very brief comments and observations. The Committee recently heard from the families of Charlotte Murray and Lisa Dorrian, and we replied to the Committee last week on its request for further information on foot of that hearing. I hope that members have had the chance to read our response, but I will reiterate a couple of points from that, if I can.

We consider that clause 24(2), which concerns the interests of justice, is necessary. It allows for the retention of judicial discretion to deal with the unique circumstances of each case on its own merits. It is considered that not including such a provision risks challenge of the provisions, should an unforeseen situation present itself. The inclusion of an interests of justice test is a recognised safeguard, which is used in many legislative frameworks and is of particular value when it comes to untested and novel provisions.

Clause 29(2) concerns the disapplication of sentence reduction for disclosures made in the last month of sentence. That was included in the Bill for practical reasons, as it is expected that some time would be needed for the Department to satisfy itself that any disclosure can be accepted and for the administration needed to apply the relevant sentence reduction. The Department wants to guard against a situation in which the prisoner's custodial period should end before it has been able to work through those necessary steps.

As the end of the custodial period approaches, and the amount of potential sentence reduction continues to diminish towards zero, the incentive of a shortened custodial period will also be diminishing proportionately. However, where the Parole Commissioners have a role, the next phase of Charlotte's law continues to have effect at this time, as the commissioners will be required to consider the lack of disclosure in their deliberations on whether to grant the prisoner's release on licence. As such, we consider that clause 29(2) will not affect a prisoner's decision at such a late point in their sentence.

In addition to the matters raised in the correspondence, the families sought to strengthen the ways in which we seek to encourage disclosure under Part 5. We understand completely the matters that were raised at that hearing, and we are happy to discuss the figures in order to explain why we chose those for the minimum sentence aggravation and the maximum reduction that would be available under the Bill. Essentially, what we have tried to do is to achieve a delicate balance in order to ensure that the incentives remain as strong as possible at every stage and to ensure proportionality in the sentencing exercise.

Clause 28 provides for the Department to hold the role of verifying the accuracy of any information contained in a relevant disclosure. We envisage that that would be in very similar territory to other functions that are held by the Department, such as its role in miscarriage of justice cases or in the area of public protection. We envisage a consultation and information-gathering role, where appropriate, with the PSNI, but we do not consider that that needs to be contained in the Bill.

Finally, there was discussion about the impact of a victim or a victim's family bumping into a prisoner once they have been released from their tariff. The standard licence conditions already include residence, and further conditions can be applied to live at a certain place. In addition, the Department has recently consulted on giving victims more engagement with the Parole Commissioners, and we say that that is of relevance here also.

The Chairperson (Mr Frew): OK, Andrew, thank you very much for that. So far, no members have indicated that they wish to ask questions, so I will begin. When we met the victims' families a number of weeks ago, they made a very concise and clear presentation of their knowledge of this Part of the Bill. They are living and breathing it, and our hearts go out to the victims' families. We commend the Department for moving to legislate for those provisions. The families were very clear about the percentages in Part 5. If I am reading it correctly, clause 24(5) states:

and

In clause 29(3):

Again, we are talking about the reduction of sentences in one clause and determining the length of the custodial period in another clause, those percentages being 30% and 50%. The families were very clear and asking whether that could be pushed up to 40% and/or 70%. What are your views on that, and why have you settled for the percentages that we have?

Ms Angela Bell (Department of Justice): I worked closely with the families throughout the development of the process. When we came to thinking about the idea that we potentially could give an increase in sentence and then a reduction, which is probably something that has never been done, we had to think about what levels would, as Andrew said, provide a sufficient incentive but at the same time not prevent an offender from waiting to a later point to make a disclosure, so it was a fine balance.

We also had to consider the proportionality of a sentence. When we are most likely talking about a murder case, although potentially a manslaughter case, we would expect a life sentence to be imposed, although there is a range of other sentences detailed in the Bill, which significantly complicated clauses because we had to go through each type of sentence.

There would obviously be a tariff with a life sentence. If we are looking at the rest of the Bill, we are talking about starting points of around 15 or 20 years depending on the seriousness of the case. To add a minimum of 30% to 15 years or 20 years would, in simple terms, potentially give a tariff of about 20 years or maybe 26 years depending on the starting point, which we thought was significant. We thought that to go higher than that raised issues of proportionality. Initially, families were keen to go to an increase of even 50%, which would have gone from a 20-year tariff to a 30-year tariff to reflect that one aggravating factor, although it is a significant factor. That felt to us to be disproportionate. Bearing in mind the article 6 rights in the Human Rights Act 1998 that sentencing must be proportionate, we felt that 30% was a more acceptable level while still a significant incentive. We also thought that it aligned closely with the sentence given in the case of John Miller, the murderer of Charlotte. The sentencing remarks in that case did not state specifically what the starting point or the aggravation were for the non-disclosure, but we extrapolated from what was said in the sentencing to come to the idea that the aggravation was probably reflecting something around the 30% uplift. We thought that that was in keeping with what we had to look at experience-wise, which is only that one case, and felt that 30% was the proportionate level to start for the aggravation. Bear in mind that it is a minimum aggravation, so the court still has the discretion to raise the amount if the circumstances support it.

This legislation has very much been developed with the families that we have in mind, but there may be occasions where circumstances are quite different. While these provisions are generated by the hurt and suffering that Charlotte's family and the family of Lisa Dorrian have experienced and continue to suffer, it is possible that in a different set of circumstances there may not be a family. I am not in any way diminishing the value of the life of any other victim, but this aggravation is very much to address that hurt caused to those families. Therefore, we had to bear in mind all the possible scenarios and come to a level that was proportionate and enough of an incentive yet still left discretion with the judiciary to uplift it if the circumstances supported that.

That was the aggravation. I will now turn to the reduction. Again, it was a fine balance. This is not based so much on proportionality but more on just what we felt was going to be enough of an incentive on the one hand but at the same time not so much of a reduction that the offender would choose not to make a disclosure before the point of sentence. Obviously, the closer that you would come to giving them the full aggravation back, the less of an incentive that there would be to make an earlier disclosure.

The Chairperson (Mr Frew): Sure. Is that why, when it comes to determining the length of the custodial sentence, you went for:

and, when it comes to the reduction of a sentence, you have said that it:

Is there an equality of arms issue there?

Ms Bell: The reduction is 50%. When the formula is applied, it comes out as 50% of the aggravation as it was set, depending on the point in the sentence at which the declaration is made. However, the initial aggravation is a discretionary amount, with a minimum of 30%.

The Chairperson (Mr Frew): OK. I will open the floor to members.

Mr Kingston: Paul has already paid tribute to the families of Lisa Dorrian and Charlotte Murray, who attended the Committee and were very clear in their asks. We appreciate their coming to the Committee, and our thoughts remain with them. Paul has articulated that they wanted that a higher additional sentence tariff and a higher reduction as an incentive. Would the 50% reduction apply across the whole sentence, or would it be just the additional element?

Ms Bell: It would be a maximum of 50% of the additional amount. Let us say that the offender received 20 years, with a further six years to reflect 30%. You would then take half off the six years, potentially, on the first day. The next day, it would be a little bit less, and so on, until the very end of the sentence.

Mr Kingston: That is fine. That was my understanding; I just wanted to clarify it. The families wanted that incentive on the additional tariff to encourage the convicted person to see sense and provide that information.

The Marie Collins Foundation, I think, highlighted what is called Helen's law in England, where a pedophile is convicted of taking an indecent image of a child but does not disclose information about the victim. I understand that that is not explicitly included in the Bill. What was your thinking on that? Why has it not been included? Could it be included with an adjustment?

Ms Bell: The provisions about the non-disclosure of the identity of a child victim of a pornographic photograph are separate from Helen's law. Helen's law is the bit that we have replicated, and we are calling it "Charlotte's law". If commissioners are considering whether an offender is suitable for release but the offender has not disclosed information, the commissioners will take that into consideration. When that law was being made in England and Wales for Helen's law, a separate issue came up in relation to the non-disclosure of the identity of child victims. Although it was included in the same legislation, they are two very separate issues, so we did not include that because it was not at all relevant to Charlotte's law. We have not consulted on that or given any consideration to policy development.

Mr Kingston: Right. Was it included in the Bill in England and Wales, or was it a separate Bill?

Ms Bell: The legislation in England is the Prisoners (Disclosure of Information About Victims) Act 2020. It contains those two completely separate issues, but both came to a similar conclusion: the parole commissioners should take a non-disclosure into consideration. However, there are very different circumstances and are about different types of case altogether. It is a bit like our miscellaneous criminal justice Bills, which can have lots of different things that are not really related to each other but all go in the same piece of legislation.

Mr Kingston: That is something that we will have to consider. Do you feel that it would be too great an addition to include that in the Bill, or is that something that we, as Committee members, would have to consider?

Ms Bell: We have not consulted on that, and we did not consider it in the context of this Bill because it was not relevant to Charlotte's law.

Mr Kingston: The two were done together in England and Wales. OK, thank you, Chair.

The Chairperson (Mr Frew): They place the duty on the Parole Board in both.

Ms Bell: That is the commonality between them.

The Chairperson (Mr Frew): That is the commonality with them. That is how they ended up in the Helen's law piece, which is the Prisoners (Disclosure of Information About Victims) Act 2020. Brian is on to something there with regard to exploring the potential of that at the very least. I bring in Doug now.

Mr Beattie: Thank you, Chair. I am sorry that I am not there in person; there are a few things that I have to do here. I also apologise for the echo in my kitchen. I have a couple of quick questions. Clause 28(1)(d) states:

Why is that necessary. What are the safeguards to prevent a life-tariff prisoner from giving out false information, meaning that the victim's remains are not found, and still getting the time off that we are discussing?

Ms Bell: You have landed on the exact difficulty that we had in developing the clauses. The problem that we have, and we know that the clauses are imperfect, is that we will not be able to guarantee, where there is no body found, whether or not the disclosure is true, so the reason that we had to include the provision about whether or not the remains were found — I think that Joanne mentioned it in her evidence — is that there could be cases where a body has been disposed of at sea and will not be found, or there are other ways that people might be able to dispose of a body, where there will be no traces found or to be found. The difficulty with Charlotte's case is that John Miller still protests his innocence, so he has not, as yet, even admitted that he murdered Charlotte. The provision that does not require the recovery of the remains necessarily but results in an admission, more or less, of guilt by saying what has happened to the remains, would be of some comfort to Charlotte's family because they would know that he had admitted murdering her, even though her remains might not be found. There were other issues —.

Mr Beattie: That is a fair answer. I guess my problem is that we need to go beyond the case that we are talking about now. We would need to go beyond Charlotte's case and consider what happens in the future. Is there not space in that particular part of the Bill to make sure that we strengthen the evidence base for them when they give that information? It is easy for somebody to say, "I threw the body in the sea. It will not be recovered", but do we need to have an evidence base for that? Do we need something slightly stronger to allow for that? I understand the point that you are making about how people can dispose of bodies — we do not need to go into any gruesome detail — but there still needs to be an evidence base for that. Is the Bill strong enough to create that evidence base?

Ms Bell: We absolutely appreciate that, and, in thinking about how we could make the Bill as strong as possible, we have required that the disclosure is made on oath to the Department. That is at clause 28(1)(c). The Department must then take reasonable steps to verify the accuracy of the information. Beyond that, it was difficult to think of what further safeguards could be included, because there may genuinely be cases in which the body is gone, and there is nothing that one person or another can say either to confirm or reject that —.

Mr Beattie: Is it worthwhile adding something even stronger? If somebody makes an admission, such as that that we have just discussed, should that not result in the reopening of the police investigation? That way, an investigation is done by an investigatory body as opposed to best reasonable steps being taken to prove it or relying on something that is said under oath. If you are looking at life in prison, you will not be too worried about not telling the truth, so would there be grounds to have an investigatory body looking at that information?

Ms Bell: In an ideal world, that might be worth considering, but, in these circumstances, if a disclosure is made, the police will investigate it. We have spoken to the police about that, and the case remains open while the body has not been recovered. They will continue to look for the body. Having an investigatory body would be a unique set-up; these cases are so rare. We have had one such case in the history of Northern Ireland. They really are very case-specific, and trying to set up a whole framework and mechanism around them might be —.

Mr Beattie: You have answered my question, and you have answered it well. You are absolutely right to say that, while the body has not been found, the police keep the case open and keep investigating to try to find the body. It is about making sure that we tie that all together. It is so unique when referring to one case, but I am talking about future-proofing. You are absolutely right. I was not talking about a bespoke body. I was making sure that we have somebody who looks at the information that has been given by the prisoner as opposed to just accepting it.

My second question is just to better my understanding, so apologies for that. The Parole Commissioners, when looking at a life-tariff prisoner, start to look at the release of that prisoner six months before their tariff release date. Although they do not actually make the decision until just before the prisoner is released, they will probably have formulated a decision long before the cut-off of one month before the end-of-tariff date. Is there a danger that a prisoner will know that things are not going his way and will use that one-month cut-off to give information, which may be false, to influence the Parole Commissioners? Does what I am saying to you even make sense? I guess it is a sequencing issue that I am really asking about.

Ms Bell: It is possible. Our feeling was that, if a prisoner has not disclosed the information by the end of a 17-year or 18-year tariff, the chances of them disclosing it at the very last moment may be small. However, we do want to keep the levers in place so that any chance at all of obtaining a disclosure remains.

The Parole Commissioners will take into consideration all the facts of the case, obviously. Their role is to consider the public protection issue from the risk of agreeing to the release of a prisoner. They will take into consideration anything that the prisoner has said, but they will also take into consideration the views of the victims under the new proposals that have recently been consulted on by the Department, whereby the victim's views are to be presented to the Parole Commissioners and considered. Again, there is a series of checks and balances, and, as I said, we will never be 100% sure that we are right or that a prisoner is telling the truth unless we have evidence that there is a body to find. As I said, there may be occasions when that just is not possible.

Mr Beattie: My concern is a niche one. It is that the Parole Commissioners make a decision two months from the end of the tariff, telling the prisoner that he is not going to be released, with him then fabricating a story about where the body is, and the Parole Commissioners changing their determination based on that one piece of information as opposed to taking all of the information that they will have considered leading up to that point. You are absolutely right to say that there are no certainties in any of this, but it is useful to air that issue.

Ms Bell: We do not have experience in this jurisdiction, but there have been two cases in England and Wales since Helen's law came into operation. There is the case of Glyn Razzell and that of David Harker. In both cases, those men have still not made a disclosure, even though Helen's law has been applied. That demonstrates the point.

Mr Beattie: Fair enough. Thank you.

The Chairperson (Mr Frew): For the members who have come in late, we are on Part 5. If you want to ask a question, you can ask it now if you wish.

Ms Sheerin: Dead on.

The Chairperson (Mr Frew): OK. Thank you. We will move on to Part 6, which is titled "Particular persons or groups" and takes in clauses 33 to 39. Andrew, will you open on that?

Mr Dawson: Sure. That would be great. I will make a few comments on Part 6, particularly the aggravation by hostility, the vulnerability aggravator and the offence of assaulting a public worker.

The Bill's hate crime provisions have engendered significant discussion, with a focus on what the protected characteristics should be for aggravation by hostility. In particular, there has been much discussion on the addition of transgender identity and on the introduction of a separate misogyny aggravator. The Committee may be aware that it had been the Minister's intention to introduce transgender identity as a protected group in the Bill, but efforts to secure consensus in the Executive were unsuccessful. Northern Ireland is the only place across these islands that does not provide specific protection to transgender individuals in hate crime legislation. It is perhaps an area that can be revisited if consensus can be found.

On misogyny, we acknowledge and share the deep concern about the high levels of gender-based violence and abuse in Northern Ireland and recognise the need across all Departments to do what we can to support victims. Recognising the gravity of the matter, the intention is to give it full and careful consideration in advance of a public consultation on that and related issues during the next mandate.

Last week, the Department responded to the Committee's query on clause 33(2)(a) about the "immediately" qualifier. It is currently in operation in hate crime legislation in Northern Ireland via the Criminal Justice (No. 2) (Northern Ireland) Order 2004 and has been copied forward here. The Department is not aware of any concerns from partners about the inclusion of "immediately" in the 2004 Order or, indeed, about its operation. The inclusion of "immediately" is to ensure that hostility demonstrated around the time of the criminal event is taken into consideration.

I will turn briefly to the vulnerability aggravator. There have been a number of suggestions for additions or changes to the definition of a "vulnerable person" under clause 36. There is some concern over the breadth of the inclusion of "for any other reason" in the definition at clause 36(7)(b). To ease any concerns, we will take this opportunity to advise that the wording of the definition was modelled on the existing definition of a "vulnerable person" found in the human trafficking and exploitation legislation that has been in force since 2015, which includes the same words. The Department, having not been made aware of any concerns, reflected much of that definition. We believe that consistency across the statute book assists clarity and understanding.

Finally, the proposed new offence of assaulting a person providing services to the public, performing a public duty or providing a public service has also elicited considerable discussion. We have listened to the calls for blue-light workers to continue to be separately recognised and for certain categories of worker to be named in the legislation. On the latter, we are not convinced that there is a case for identifying specific categories of worker, as the issues faced by one will potentially be faced by all. As recently as last week, for example, we were asked whether service police will be covered by the new offence. Such queries perfectly support our position that attempting to list all categories of worker who should benefit from clauses 37 and 38 would inevitably result in some being missed, which is exactly the policy mischief that we want to avoid. However, Committee evidence has shifted the Department's view: maybe an argument can be made in favour of making a distinction for blue-light workers. We are looking at the possibility of amendments in that regard. We also fully understand the importance of recording data to inform the system of where the pinch points are and where resources need to be directed and to identify new offending trends and issues. Clauses 37 and 38 are to be commenced by departmental order to allow for the necessary training, implementation and IT solutions work needed to ensure that data is effectively captured. We do not consider it necessary to itemise categories of worker in the legislation simply for the purpose of data recording.

The Chairperson (Mr Frew): Andrew, thank you very much. I pricked up my ears when you said that you were minded to look at amendments having heard Committee evidence on blue-light workers. Will you define "blue-light workers" for me? Does that cover everything that you were going to repeal?

Mr Dawson: It is the three in the legislation: police officers, Fire and Rescue Service workers and ambulance workers.

The Chairperson (Mr Frew): Does it mean that you will not repeal those three?

Mr Dawson: They will remain, and there will need to be some amendments to the legislation.

Ms Bell: There needs to be an uplift in those sentences to match the new offence, so that they do not [Inaudible.]

The Chairperson (Mr Frew): Right, OK. Having the ambulance workers in there too is dear to my heart, although they are not named in the Bill. As long as you define "blue-light services" as everything that is contained in the Bill as well as ambulance workers, I support your move in that regard. I am interested to hear about the uplift to make sure that it —. The rationale for doing that is the potential consequence of someone who works in the blue-light sector being knocked out of commission or taken to hospital. Someone could die or be seriously injured and not get the required treatment as a result of that worker not being at their job. That is different from someone who works in retail. My family members have been in retail for most of their working lives, so I get why we need that protection.

Have you thought of any other tiers that may need to be covered? There is a lobby for the inclusion of people who work in court, on the basis that their front-facing role is challenging and adversarial. They are not necessarily in the same situation as blue-light workers, where someone could die or be injured further as a consequence, but you can understand that they are in harm's way. If we are talking about court workers and officers of the court, we are probably also talking about a whole range of people with quite risky jobs, such as probation officers and social workers. Have you given any thought to that?

Mr Dawson: We have given it a lot of thought. We took that initial stance on blue-light workers in particular because, in considering an emergency department nurse, for example, we argue that ensuring that that worker is not out of commission as a result of an assault is a matter of life and death. That worker will not be covered by the blue-light legislation but will be covered by the new provisions. That is arguably, however, a boundary that could be stretched. That is why we took our initial position, but we recognise that blue-light workers are a unique case.

When it comes to court officers, we feel that the new provisions are suitable for that purpose. Whether the job in question is that of court security person, solicitor or barrister, the three legs of this cover all those eventualities. It is a matter of where the line is drawn, but we feel that, for officers of the court, including solicitors and barristers, the provisions that we have put forward provide sufficient coverage.

The Chairperson (Mr Frew): I asked about the definition of blue-light workers because you have captured the tension that comes from there being a gap. During a previous mandate, I was motivated to produce a private Member's Bill on protecting emergency staff, but, as I worked on that, I found that it would get wider and wider and would be highly amendable on the Floor of the Assembly, simply because people such as social workers would ask, "What about me? I have a dangerous role too". Even if we take an emergency department, should you include the cleaners or a consultant who walks through an accident and emergency unit to get to their car at night at the end of their shift? There was all of that. Had I progressed my work in that field, I would have found it widening and unravelling. It is not that there is a danger in that, but there is real potential that it will spread out if it is not covered by the legislation correctly. Do you think that there is a miss in respect of healthcare workers? I will use the same logic as you used on blue-light services: does the fact that healthcare workers are not out and about mean that there is a gap that we will have to try to fill?

Mr Dawson: It is worthy of consideration, but I am not sure how it would be addressed. In a previous life, I was the workforce director in the Department of Health and am very familiar with the dynamics, so I have given it a lot of thought. You mentioned cleaners, and they are potentially at risk. A receptionist might be caught in the crossfire, as might the file clerk walking by when a fracas happens. There are many professions in the Health and Social Care (HSC) system. We cannot adequately list them: new ones are created all the time, and no list would future-proof the legislation.

Secondly, if we look at blue-light workers as a case apart, the boundary will have to be drawn somewhere. However, the provisions are additional protections to what exists at present and provide protections for all workers who provide a public service. However, you might want to give further attention to managing the line between blue-light workers and the emergency department nurse, for example.

The Chairperson (Mr Frew): Absolutely. Thank you for being responsive and listening to the Committee's evidence. We have had a plethora of evidence that opposes the outworkings of the Bill, not least from the Police Federation and the PSNI. When are we likely to see the amendments?

Mr Dawson: We are working on them. My cop-out answer is that you will see them as soon as possible, but I will be able to confirm the timing with you.

The Chairperson (Mr Frew): I ask because we start the deliberations on Thursday, and there might not be time to include those amendments in the Committee's report. Nonetheless, I welcome the amendments, and I am sure that the members will welcome them when they see them. However, they may not be captured within the Committee's deliberations.

Mr Dawson: I understand, Chair. I will get the amendments to you as soon as we can.

The Chairperson (Mr Frew): OK.

Mr Kingston: Most of our evidence was on this Part, and there was a lot of debate at the Committee and during evidence sessions with witnesses. The two types of aggravator in clauses 33 and 36 are hostility and vulnerability. Is it fair to say that the hostility aggravator will be harder to prove in a court case than the vulnerability aggravator?

Mr Christopher McElwee (Department of Justice): Yes. The hostility threshold is higher in the court setting.

Mr Kingston: That was relevant to some of our discussions. Can you explain why disability is in both categories?

Mr McElwee: Disability is currently captured under the legislation that used the aggravated sentencing legislation to tackle hate crime. It did not make sense to drop a protected characteristic for the new legislation.

Ms Bell: For disability, the vulnerability aggravator is purely the fact that the person is disabled. For it to be a hate crime, there has to be proof of hostility towards disabled people as a group. There is a distinction. You could say that the vulnerability aggravator is slightly broader, in that you do not have to make an allegation of hostility.

Mr Kingston: I would have seen that as sitting in the vulnerability category. People talk about hate crime, but that is not a legal term for an offence. Effectively, we think of crimes that are aggravated by hostility as hate crimes.

Mr McElwee: Yes.

Mr Kingston: I would not tend to think of an attack on a disabled person as a hate crime. Are there such examples in case law?

Mr McElwee: You may have had some conversations about "by reason of" being included in the hostility aggravator. Judge Marrinan's review of hate crime legislation suggested that "by reason of" should be included specifically to tackle disability-related hate crime that did not reach the hostility threshold. It is for cases where there is no direct evidence of hostility, but a disabled person has been targeted and it may have had more to do with their vulnerability.

Mr Kingston: Hopefully, it will provide more protection for vulnerable people.

Mr McElwee: As well as protection for disabled people.

Mr Kingston: Yes. I have no difficulty with it; I am just asking the question.

Can you clarify what the aggravation will be on a sentence? I do not believe that that is specified in the Bill. Is that left to the discretion of the judge? There are some other matters in the Bill where the consequence is set out in terms of a sentence or extra sentences.

Mr McElwee: It is at the discretion of the judge at the trial.

Mr Kingston: OK, so there are no parameters at all, then?

Mr McElwee: Certainly, for hostility, it would not be beyond what the maximum sentence might be anyway.

Mr Kingston: OK. I did not see it, so I am just clarifying that there is nothing in the Bill to explain the consequences of the aggravation being proven in court.

Mr McElwee: Clause 34(2)(d) states:

There would probably be a higher sentence, but it would not be beyond the maximum sentence that could be imposed.

Mr Kingston: Right, OK. We have had a lot of debate about misogyny, sex and misandry. Did you say that it is the Department's intention currently to look at something in the next mandate, rather than table an amendment to this Bill?

Mr McElwee: Yes, that is the case. Having watched your evidence sessions, I know that there have been extensive debates about the best way to tackle that. I know that, more recently, there has been a focus on a misogyny aggravator, so I will focus on that aggravator first. If we wanted the legislation to include misogyny, that would probably have to sit outside clauses 33 to 35, because the aggravation is hostility, which has to be against a group. If you wanted to include in this Bill protections for women, say, those would have to come under sex or gender. If you wanted to focus on a misogyny aggravator, as has been proposed in Scotland, that would be a separate aggravator. There is probably quite a lot to consider, rather than just lifting the Scottish model and applying it here, which is why we are looking to do that until the next mandate. We have not yet consulted on the best way forward on gender, sex and misogyny.

Mr Kingston: I am not saying that it would be a satisfactory way of dealing with the matter, but let us look at clause 36, which is "Aggravation by reason of vulnerability". Where there is domestic violence, or violence by a man against a woman in particular, that is quite often because the man thinks that he can physically dominate a woman, and it is a form of bullying. It could well be argued in court that that is also misogyny. Even as currently worded, what are your thoughts on that clause? Where a man attacks a woman, could there be circumstances in which it could be seen that a person's ability to protect themselves from violence was significantly impaired for any other reason? I know that that is not a satisfactory way of dealing with it, but it might be something to think about.

Mr McElwee: As you say, given our conversations with stakeholders, I do not think that it would be warmly received.

Ms Bell: Clause 36(7) is, I think, intentionally gender-neutral. If there is proof that a man has been abused or neglected or subjected to exploitation, there is no reason why he should not avail himself of that protection in the same way as a woman can.

Mr Kingston: Even as currently worded, there could be cases in which that could be brought into the trial, in particular where a man has physically attacked a woman. That is what I am describing. I appreciate that it is a huge topic that needs to be addressed.

I will turn to assaults on public workers. You will have seen that we had representations from retail organisations highlighting the particular vulnerability of people in retail. There are very large numbers of people who are very much on the front line with the public. My thoughts, however, are that, once we start specifying types of jobs, we run the risk of leaving some sectors out. Some of my concern is about even the general title, "Assaults on public workers etc". People might think that that means public-sector workers. I would like to think that clause 37(3) makes clear that "a public worker" is defined as someone:

that can include the private sector —

Again, that could be in a private sector arrangement. I hope that that is your intention.

Ms Bell: It is, and clause 37(4) makes clear that the voluntary sector is included, stating that it is:

Mr Kingston: I welcome your saying that you are looking at blue-light services.

Clause 37 introduces a new offence of assault on a public worker, and clause 38 introduces an aggravation of specified offences against a public worker. The Committee had representation from the Law Society, and some of us, at the all-party group on access to justice, heard directly from a solicitor who, as you might be aware, was subjected to an horrendous litany of harassment and intimidation in connection with a case in which she was defending the victim. The perpetrator engaged in a series of incidents of harassment and intimidation against her outside her home, contacting her and intimidating her family. She ended up having to move.

When I look at the wording of those two offences, I am not sure that what she was subjected to as someone providing a public service would be included in the specified offences, even though solicitors would, I think, be included, in the intended category. She was not subjected to a physical assault. As I understand it, specified offences, as defined at clause 38(3), are, if you like, the higher-level offences of manslaughter, kidnapping, threats to kill, wounding, administering poison, bodily injury, using explosives and non-fatal strangulation.

That solicitor was subjected to a horrendous crime as a public worker. I am concerned that, if such a perpetrator were convicted, the offence would not, as I read it, meet the threshold for aggravation. Will you say a bit more about your thinking? Why is the aggravation allowed to apply only in more extreme crimes, or whatever way you want to describe those specified offences?

Ms Bell: I have to go back to the start on that. When we originally consulted, it was about assaults on emergency workers. It was all about the police, ambulance, the Fire and Rescue Service and related professions. Our original decisions on the consultation were that there would be a new offence of assaulting an emergency worker. That was at about the time when the campaign for assault on a retail worker to become a specific offence grew legs and became an issue that we had to consider. We said that we would consider whether it would be included in the assault on emergency workers offence. We received representations from public transport workers and solicitors. When other professions then realised that a new offence was being created, they said that they needed the same protection. That is why we changed from having a new offence of assaulting an emergency worker to a new offence of assaulting a public worker, and we did not want to list all the professions that would be included, given that it was impossible to foresee exactly who would need to be included.

Mr Kingston: I do not think there is any list of offences in clauses 33 and 36 for when aggravation would apply. In clause 38, however, there is a specific list of offences. The aggravator would not apply to a lot of lower-level but serious crimes.

Ms Bell: We were dealing with assaults on public workers, so we created a new offence of assault on public workers, which is a hybrid offence but is still quite low level. The new offence would equate to common assault, which is why it carries a sentence of 12 months in a Magistrates' Court or two years in a Crown Court.

Then there is the range of much more serious assault offences. We wanted to make it very clear that, if the victim of one of the more serious assault offences was a public worker, they would also benefit from a statutory aggravator. In that way, the court would be making it very clear that that factor was being taken into consideration and that the sentence was being created to suit the circumstances. Non-assault offences are not included, because it is about assaults.

Mr Kingston: Yes. Do you understand what I am saying? There are not the same conditions in clauses 33 or 36.

Ms Bell: I think —.

Mr Kingston: That is our concern. Someone who —.

Ms Bell: The Bill does not take away a court's ability to add an aggravator, as it would do in the normal course of events. We are highlighting certain circumstances in which the aggravation will be made a statutory requirement. If you read sentencing guidelines, however, you will see that the fact that the person who is the victim of an offence was a public worker already comes up quite often as one of the aggravating factors that the court has identified. That may not appear in the statute at the moment, but it still happens: the court has the ability to take those things into consideration and reflect them in the sentence.

Mr Kingston: OK. Thank you.

The Chairperson (Mr Frew): Is that why you left out section 42 offences?

Ms Bell: We left section 42 offences out because the new offence is more or less equivalent to section 42, so we would expect the new offence, rather than section 42, to be used for those workers.

The Chairperson (Mr Frew): Thank you.

Ms Sheerin: Thanks to you all. I will pick up on some of the points that Brian asked you about regarding the misogyny aggravator. As you outlined, we have had a lot of conversations about that. You referred to the work that was done in Scotland and said that it would not be possible to —.

Mr McElwee: It is not that it would not be possible; we would like to consider how it would fit over here.

Ms Sheerin: OK.

Mr McElwee: In Scotland, the aggravator is being taken forward, but two or three new offences are also being created. They are carving out some offences that could not be considered under the misogyny aggravator. That is the sort of work that we would like to look at before going out to public consultation and taking that forward.

Ms Sheerin: Would you say that it is a capacity or a timing issue?

Mr McElwee: It is a timing issue. Our focus has been on the provisions that are before the Committee at the minute and on the Victims and Witnesses of Crime Bill. When there was going to be a full hate crime Bill, it was intended that this all would have been considered by now. Unfortunately, however, it has been moved into the next mandate.

Ms Sheerin: We have had consultations before, including —.

Mr McElwee: Judge Marrinan conducted a consultation. He recommended gender-neutral protected characteristics. The Department carried out what we call a "call for views". There was no worked-through model for that; we just gave four or five options and asked people to give us their views on them.

Ms Sheerin: OK, so you think that more extensive consultation is needed.

Mr McElwee: A bit more work is needed, on our side, as to how it all fits. I certainly would not argue against having a misogyny aggravator, based on the merits of doing so. It has been put together by people who are far wiser than I am, but it is something that we would want to take time to consider.

Ms Sheerin: Looking at the aggravation by hostility, I understand what you say about a lot of the aggravators, such as "racial hostility" and "religious hostility", being neutral. The last two, however, include "hostility related to disability". I cannot imagine that there is a body of evidence to suggest that people are targeted because they are able-bodied or, in relation to the "hostility related to sexual orientation", that anybody is targeted because they are heterosexual. We have seen a massive body of evidence that suggests that there is an issue with misogyny, and most of the evidence that the Committee has taken throughout this process has been in favour of having a misogyny aggravator, on the basis that there is an issue in society that we want to address. My party would have concerns with having it be gender-neutral. Including just "sex" or "gender" as a protected characteristic has the effect of protecting everyone and does not acknowledge the issue of misogyny.

There have also been suggestions to include a misandry aggravator. Again, we would have concerns about that. Some of the witnesses who have presented to the Committee have articulated very well that there is no evidence base to show that there is an issue with misandry. Do you have a view on that?

Mr McElwee: At present, we probably do not see the evidence base for misandry, but we intend to consider it in the next mandate, alongside misogyny, gender, sex and age.

Ms Sheerin: OK. We have heard evidence that suggests that some victims of hate crime are targeted on the basis of a range of factors. Have you given thought to capturing intersectionality to ensure that, if somebody is targeted for a range of reasons, those are recorded?

Mr McElwee: Clause 34(2)(a)(ii) provides that, when the court gives its reasons for deciding that the offence is aggravated, it must do so:

We say that that captures intersectionality, but maybe it is not made explicit or up front in clause 33.

The Chairperson (Mr Frew): Give us the reference to that clause again.

Mr McElwee: It is clause 34(2)(a)(ii).

The Chairperson (Mr Frew): Thank you.

Mr McElwee: That captures intersectionality.

Ms Sheerin: You are content that that is covered.

Mr McElwee: Yes. It was a drafting choice, and it might have worked better if it had been up front, but it is there.

Ms Sheerin: My last question relates to the definition of "hostility". How would you define "hostility" as it is laid out in the Bill?

Mr McElwee: We go back to Judge Marrinan's consultation: he recommended not defining "hostility" but leaving it to the judge's discretion. "Hostility" has been used for 20-plus years in the aggravated sentencing model that we use to prosecute hate crime, so it is well understood by criminal justice organisations.

Ms Sheerin: OK. Thank you.

Ms Ferguson: I will look at age. Clause 36, on vulnerability, has been drafted as an alternative to including age as a protected characteristic, yet the Department has confirmed that age will be included in phase 2 of the consultation on hate crime legislation. Could the outcome of that consultation render clause 36 redundant? Given the evidence that we received from the Older People's Commissioner last week and the fact that Scotland is now gathering data on age-related hostility, why do we not see age as a protected characteristic in the Bill?

Mr McElwee: This might not be a particularly popular answer, but it falls into the same category as gender, sex and misogyny in that it is a matter for the next mandate.

Ms Karen McMinn (Department of Justice): We have engaged in policy development relating to age, but, to date, there is insufficient evidence to indicate the need to include age as a protected characteristic at this stage. We are monitoring the legislation in Scotland and will continue to do so. That is in the context of recognising that we need to provide adequate protections for older people who may be victims of crime and to ensure that there are robust sanctions. We are also mindful of the original purpose of hate crime protections, however, which was envisaged as the need to protect minorities. It is really about whether age as a protected characteristic fits well in the hate crime model or sits better outside it, along with sanctions relating to other offences.

Ms Ferguson: As was the case with the previous answer, you are continuing to do policy work and to capture data, so it is just a timing issue. Would you oppose a stand-alone aggravator for misogyny, for example, if the Committee were to propose it?

Mr McElwee: We would be happy to consider anything on misogyny from the Committee, if that is the way it hopes to go.

Ms Ferguson: Would you likewise be happy to consider a proposal on age as a protected characteristic?

Mr McElwee: Yes.

Mr Dawson: When it comes to considering amendments in the course of debate and so on, we are limited, given our evidence base, as to what we will be able to contribute to the debate from the departmental perspective, but it is open to anyone on the Floor to consider any point.

Ms Ferguson: Thank you.

The Chairperson (Mr Frew): I will pick up on Ciara's question about how the need for a group to be a protected group is determined. It strikes me that you might get some very rare cases of hostility against a particular person that is based on their position in society, but, surely, even if a law is to sit there to protect one person in 10 years' time, that will have been of some good. If the Department perceives that there is no need for a specific group to be captured, how will you know that the threshold has been met? There has to be some sort of logic or formula used to say, "Right, OK. We can capture this now", or, "We are still not sure yet".

Mr McElwee: When it comes to the hostility aggravator, the main purpose is to protect minorities. We engage with the PSNI on need and internationally on age. Obviously, Scotland is a very close jurisdiction, and we can take our learning from there.

Ms McMinn: The need is based on evidence. We draw from statistical data, where available. When it comes to age, we have looked at other jurisdictions around the world. We look at other provisions. Something to note about age is that the legislative landscape has changed a little bit since Judge Marrinan made his recommendation in 2020. We have the vulnerability aggravator in the Bill, and there is also the Department of Health's Adult Protection Bill. However, that is not to say that we have not publicly consulted on age, sex, gender or misogyny. We have plans to do that, and we are very open to receiving the range of views from the public consultation and, indeed, from the Committee during this period.

The Chairperson (Mr Frew): Sure. I am glad that the Department has gone down the road of an aggravator with regard to hostility or "hate crime", if you want to use that terminology, which I do not necessarily like, to be honest with you. I do not like the terminology "hate crime", because it is not a crime to hate some things. We also know that hate inspires people to cause aggression and commit criminal activity against a person, so we have to take that very seriously. Given that aggravation by hostility in clause 33, basically, as Brian alluded to, picks up every crime, has the Department given any thought to adding protection when it comes to freedom of expression about, for instance, religion? If someone criticises a religion, which they should be able to do, no matter what the religion is, how are they protected?

Mr McElwee: First, we need to separate hate crimes, which are within this, from what might be considered to be hate speech, such as in the stirring up hatred offences that are found in the Public Order Act. They are not under consideration here. There are some exemptions — I would need to look at it again — around criticising same-sex marriage and things like that in stirring up hatred offences. I sound like a broken record, but the stirring up hatred offences are for the next mandate as well. We are looking at that.

The Chairperson (Mr Frew): May I point something out to you? Let us take a hypothetical situation regarding religious hostility, though I know that it is dangerous to do so. Think about an offence aggravated by religious hostility. If something happens to a Christian person, we look at the two limbs with regard to how that would be aggravated. Clause 33(2)(a) states:

of the religious group of being a Christian.

Clause 33(2)(b) states:

Imagine that somebody commits an offence against a Christian man — for example, beats him up — and then you go through the perpetrator's Facebook page and can clearly see that that man does not like and is quite critical of the Christian faith. I do not know whether that should be captured just because he is critical of the faith and because he has attacked a Christian man. How will you protect people's freedom of expression against a faith?

Mr McElwee: In that case, it is for the PSNI to build up an evidence picture to show that, no matter what he has said online — he may just be criticising the religion — there is hostility towards the religion. The police will build up that evidence picture. Then it is for the Public Prosecution Service (PPS) to decide whether or not it supports the police's case and, if it does, to bring charges. Eventually, it is for a judge to decide.

The Chairperson (Mr Frew): Should there be some sort of disclaimer or protection there?

There was a proposed amendment based on the "Protection of freedom of expression" section in the Public Order Act 1986. I will read it out:

I know that that is very wordy and that I have just thrown it at you, but do we need something like that in Part 6 to protect freedom of expression?

Mr McElwee: Subject to correction, I do not think that that has been considered before.

Ms McMinn: No. Those matters are, as Chris said, more related to Judge Marrinan's recommendation on the introduction of stirring up hatred offences, which we have begun policy development on and are looking at. Again, the consultation on that is due in the next mandate. Judge Marrinan also made a recommendation on a statutory aggravator for sectarianism. We are also continuing to look at that and the definition of sectarian offending. That is clearly within the remit of hate crime, unlike stirring up hatred or hate speech.

The Chairperson (Mr Frew): We will go on to clause 36. A lot of evidence has been presented here, particularly by the PPS, which is really uncomfortable with clause 36, "Aggravation by reason of vulnerability". It was quite damning in its evidence. It was quite brutal, if I can say that, and quite bullish. It is not often that you see something like that from the PPS towards the Department. I was not at the meeting, but I listened to it, and what the representatives said was quite cutting. They said that there could be all sorts of problems with clause 36. To tie up some of the loose ends: if the prosecutor does not apply the aggravator, the court may not be able to take vulnerability into account in sentencing. Is that how you see that?

Ms Bell: That is not how we see it. I listened to the evidence from the Bar, and it said that there was nothing to stop the court from taking vulnerability into account at any point. I see that the PPS has written back again. We received that just yesterday. We will look closely at that and come back to you on the points that it is still concerned about.

The Chairperson (Mr Frew): It may be that a victim's vulnerability only comes to light during the court case.

Ms Bell: Exactly.

The Chairperson (Mr Frew): Could the aggravator then be included halfway through the case?

Ms Bell: We will look at that. My view is that the court would be able to take the vulnerability into account, whether it does so under that provision or under its general powers to consider aggravating factors. We will need to check it over and come back to you on the detail.

The Chairperson (Mr Frew): They raised the possibility — this would be quite perverse, mind you — of a defendant being more likely to plead not guilty and the fact that the vulnerability aggravator could therefore lead to more contested cases. Do you see that materialising?

Ms Bell: It is a possibility. Again, it comes down to the balance between what we want and do not want. Do we want clarity and transparency by having that statutory aggravator, which enables the court to specify that the offence has been aggravated and that it is increasing the sentence to reflect the aggravation, or do we not? I take the previous point that, if they have the aggravation on their charge, it becomes something that has to be proved and considered if a defendant is pleading.

The Chairperson (Mr Frew): Clause 36(2)(b) states that "A", the perpetrator:

Is there a danger that it will be very difficult to prove that "A knew, or ought reasonably to have known, that the victim was a vulnerable person"? I suppose that that is the essence of being attacked because of your vulnerability.

Ms Bell: It is. The clauses were developed with the expectation that it would be fairly obvious, and, if something was not obvious, the aggravation does not need to be put at the outset.

The Chairperson (Mr Frew): I get that.

Clause 36(6) states:

What does that mean? You are either vulnerable or you are not.

Ms Bell: Some offences, by their nature, are about a vulnerable person, such as sexual offences against children. Part of the offence is the vulnerability of the victim. On that basis, the sentence that has been devised to go with that offence already takes that into account, so we do not want double counting.

The Chairperson (Mr Frew): In some cases, you will have a child aggravator, for example.

Ms Bell: Exactly.

The Chairperson (Mr Frew): How useful then is clause 36(7)(a)? It refers to:

Ms Bell: It is for cases with ordinary types of offences, such as ordinary assault or anything that does not include the fact that the person is a child as part of the offence itself, as written in statute.

The Chairperson (Mr Frew): Moving to the definition of a vulnerable person, clause 36(7)(b) refers to:

What does "for any other reason" mean? Is that a safety measure?

Ms Bell: It is there for safety. We took the definition and modelled it largely on the human trafficking provision, which has a definition of vulnerability. Those words are included in that piece. It is to cover things that we have not thought of. We could not make a huge list.

I noticed recently that the Scottish Sentencing Council issued a guideline that included that targeting a victim who is vulnerable would be a factor to add to the offender's culpability. It noted that whether a victim is vulnerable is for the courts to assess and that it is not possible to provide a complete list of such instances. Therefore, it supports the idea that it would be impossible to include everything.

The Chairperson (Mr Frew): That makes sense, albeit that the PPS thought that the definition was very broad, but it has been used in human trafficking legislation before. Is it fair to parachute provision from the human trafficking legislation and put it into the "aggravation by reason of vulnerability" clause when we know that there are more vulnerable people out there who have not been trafficked?

Ms Bell: The provision is a definition; it is not a —.

The Chairperson (Mr Frew): Can something be added to include a wider aggression against vulnerability? What I am getting at is that I have thought for a long time that we need to add to:

to include "or psychological harm". You could include physical harm in that too. That covers the physical and mental aspects of it. You can understand that someone may not have been vulnerable at a point, but, because of the perpetration of a crime on them, they have become vulnerable.

Ms Bell: Yes, if they have become vulnerable before that crime was committed on them through other events.

The Chairperson (Mr Frew): You can be worn down psychologically or physically. I wonder whether that should be included. I have thought a lot about psychological harm, but I am now considering physical harm too.

Ms Bell: I do not see that there is a big problem with adding more to it, although we have "or for any other reason" there to cover those things. The only concern that I have is that, the more we add in, the more it looks like we were trying to create a list. That then has interpretation issues where people start interpreting within the context of the clause itself.

The Chairperson (Mr Frew): Yes, but you would always keep "for any other reason".

Ms Bell: We think that it is worth having it there; yes.

The Chairperson (Mr Frew): Yes.

Mr Kingston: This is further to what you said, Chair. When I look back at my notes from the meeting with the PPS, I see that the PPS said that it would prefer that clause 36 be removed entirely. The PPS would prefer more clarity on charges and is more supportive of clause 33, which is "Aggravation by hostility". The PPS feel that clause 36 is too vague.

What actual difference will clauses 33 to 36 make? They do not specify the consequence for hostility that has been proved in court. From what you have said, judges can already factor in and refer to hostility. They can say, "I believe that this crime was motivated by hostility" or, "This crime was aggravated by the vulnerability of the victim". Whilst the Bill provides that it would be specified at the start and the aim is that it would be proven through the court case, there is no specific consequence. A critic would say that all that can happen anyway: a judge can decide that they are satisfied that the crime was aggravated by hostility or vulnerability and impose an additional sentence as a consequence.

Ms Bell: You are absolutely right. Those clauses are included very much as a recognition that the aggravators need to be publicly recognised. The difference is that the court would have a duty to state that the offence is aggravated; to record the conviction in a way that shows the aggravation; and, in determining the sentence, to treat the aggravation as a factor that increases the seriousness of the offence. Clause 36(4)(a), (b), (c) and (d) make a difference in that they make it more public and transparent. Currently, those things will be included in the sentencing guidance, and the courts will take them into consideration, but the responses to our consultation were very much in support of a more transparent approach. While the sentences are unlikely to change as a result of those provisions, it will be very clear that those things are being taken into consideration because of the provisions.

Mr Kingston: It is about public recognition and messaging.

Ms Bell: It is.

Mr Kingston: I understand what you are saying.

I go back to "Assaults on public workers etc". Will you clarify what you said earlier, in reply to the Chair, about thinking about doing something extra for blue-light workers? The Law Society and the Bar suggested that "officers of the court" be included. Do you have a view on specifying that as an important public function? It is important that everyone respects the law and the courts, and, without getting into current matters too much, I will say that I hope that everyone does. On page 64 of the Bill, there is a repeal relating to offences against the police and the Fire and Rescue Service. Might you look at that again if you do something specific for officers of the court? My question is about blue-light workers, officers of the court and the proposed repeals.

Ms Bell: Although we do not have a draft ready yet, I envisage that we will remove from that schedule the provisions that repeal the existing offences. However, we will need to amend the sentences that are available for those offences, because it would be silly to have those offences still in place and a higher maximum sentence for the public-worker offence. We will need to match up the existing offences that we want to retain. Andrew talked about whether we will go beyond blue-light workers, and that is where the difficulty arose with this clause in the first place: initially, it was to be only for blue-light workers, and then it grew and grew. We do not want, by starting to bring in specific offences again, find ourselves in the situation where we have picked one person and the next person asks, "Why not me?".

Mr Kingston: Yes, OK.

The Chairperson (Mr Frew): We will move quickly on to Part 7, which is titled "Road traffic offences". Andrew, do you want to say anything about this before we ask questions?

Mr Dawson: Yes, Chair. I will be extremely brief. We listened carefully to Mr Dolan's evidence to the Committee in June and his plea that the Bill should reflect the recent legislative provision in England and Wales whereby causing death by driving attracts a discretionary life sentence. The Bill as introduced reflects a considerable amount of legal and practical deliberations on the topic, but we fully understand the Dolan family's position.

Our view remains that increasing the maximum sentence from 14 to 20 years, as is proposed in Part 7, would result in an uplift of the custodial periods imposed by the courts for such egregious and awful offences. However, we appreciate that a potential life sentence sends a strong message and may have some deterrent and other effects in line with the purposes of sentencing set out at clause 1, and we acknowledge that the Assembly may wish to reflect the view expressed by Mr Dolan.

We in the Department commend the Dolan family and, indeed, the families of Charlotte Murray and Lisa Dorrian in respect of the Charlotte's law provisions. We pay tribute to them, in light of their having experienced such a tragic loss, for the endeavours that they have made to prevent other families having to experience the pain that they have lived with for so long. That is all I will say on Part 7.

The Chairperson (Mr Frew): Thank you, Andrew. I also pay tribute to Peter Dolan, who has given evidence to the Committee in this process over the past weeks and months.

Proposed article 12C is titled:

It includes an amendment to impose:

Is four years enough for a disqualified driver who causes death or grievous bodily injury? Am I reading that wrongly?

Ms Bell: No, that is right, Chair. That doubles up what is currently in place. The reason why that is such a low tariff is that, in those cases, it is more than likely that one of the more serious offences will be charged as well. The fact that the person was disqualified is not why they caused the death.

The Chairperson (Mr Frew): Right, OK. That person would still fall under clause 41.

Ms Bell: They would probably be charged with causing death by careless driving. It is more than likely that another offence would be charged.

The Chairperson (Mr Frew): In many ways, you could look at that as an aggravator.

Ms Bell: Potentially. It is a separate offence, but the court would treat it as —.

The Chairperson (Mr Frew): How many times does it happen that a disqualified driver has article 12B applied to them alongside article 9 or article 14?

Ms Bell: We do not have that information. We could see whether it is possible to distil it from data.

The Chairperson (Mr Frew): Having taken evidence on road traffic accidents, it strikes me that, even though we have set the maximum tariffs for sentencing, sentences rarely get up to that, if ever. That causes a lot of pain for families. Some of the evidence that we have heard and the conversations that we have had, even in an informal setting, have been really hard to listen to. The pain from not only the loss but the fact that someone got three years inside and is then out again is really hard for those people — parents, brothers and sisters — to take.

Ms Bell: It is. It is devastating. We have worked closely with the Dolan family in particular. I do not know how they do what they do. If I were in the same situation, I just could not do it.

The Chairperson (Mr Frew): I know that we do not like talking about minimum sentencing, but is there anything more that we can do as legislators or you can do as a Department to influence the judiciary in that regard?

Ms Bell: The reason why we suggest an increase in the determinate sentence that is available — we are talking about increasing from the current maximum of 14 years up to 20 years, and we appreciate that it would be very unusual for a person to receive the maximum — is that, previously, the offence carried a 10-year maximum, and, when that was increased from 10 to 14 years, sentencing guidance was reviewed so that there would be an uplift in the custodial sentences that were imposed to match the increase in the maximum sentence. We anticipated that the same would happen if we increased the maximum determinate sentence from 14 years to 20 years, so that, while we might still not see any 20-year sentences, we would certainly see an increase from the current levels being imposed.

We absolutely appreciate Mr Dolan's desire to see that seriousness reflected in the sentence and to match what is done in England and Wales, but the difficulty with having a life sentence is that there is no guarantee that it will result in higher custodial parts of the life sentence being imposed by the courts. There is a balance to be struck between whether a life sentence is considered to be appropriate to address the harm or whether a longer determinate period will get what the families want.

The Chairperson (Mr Frew): I understand.

Ms Ferguson: I have a similar question. You are on record as saying that the fear of being caught is generally more of a deterrent than the actual sentence. However, there is significant support for the Dolan family, who we met last week or the week before. There is a delicate balance to be struck. I got some clarity from you there, but I would like to hear how you arrived at the figure of 20 years.

Ms Bell: Twenty years would be a unique maximum sentence. At the moment, the bands for Crown Court maximum sentences tend be five years, seven years, 10 years or 14 years — there is not much more than that. A 20-year maximum sentence would be a new approach. It was chosen, genuinely, as a maximum that could address the purposes of sentencing that are set out at the start of the Bill: punishment of offenders, protection of the public, rehabilitation and, to an extent, deterrence. We see a lot of academic studies that say that the length of the sentence is not a particular deterrent and that it is the fact of the offender being caught and facing up to what they have done that is the deterrent. While we hope that there will still be a deterrent effect, it might not be as much as we hope. Twenty years seemed to be a significant uplift to what is in place currently.

Ms Ferguson: Why not go for a life sentence?

Ms Bell: Purely because of the way that a life sentence works. As you know, when somebody gets a life sentence, they do not spend the rest of their life in prison. The court decides what part of the life sentence must be spent in prison. That period is meant to reflect punishment, and the remainder of the life sentence is spent on licence so that the person can be called back to prison if they reoffend. That exists as a deterrent probably more so than if nothing were there. In the case of determinate sentence, the offender generally gets out at the halfway point of their sentence and is subject to licence for the other half of the sentence. The custodial period of a life sentence and that of the increased 20-year maximum sentence might end up looking very similar. It is then a question of whether the licence for the rest of the person's life is considered appropriate.

We have included a provision whereby a life sentence is a possibility for repeat offenders — if that person were to reoffend, committing the same offence. If we were to change the initial offence to get a life sentence, the subsequent offence provision would become —

Ms Ferguson: Redundant.

Ms Bell: — redundant. Yes.

Mr Bradley: Sorry for missing the presentation. I have a cold and am not feeling the best. I hope that I do not give it to anybody.

I am in favour of a life sentence, and I will tell you why. If someone goes out in a car and takes a life because of drink, drugs or whatever else, they are robbing a family of a life — normally it is a young life — that cannot be replaced.

I am very much in favour of a life sentence being handed down to a person who kills someone having deliberately got into a car in those circumstances. I do not accept that the higher tariff will be more of a deterrent. The biggest deterrent will be being told, "If you go out and do that, you'll end up in jail for life". That is more of a deterrent than being told, "You might get 14 years, 20 years or something else for good behaviour", and I am fundamentally opposed to that happening.

Mr Dawson: We appreciate that. Again, that argument was advanced by Mr Dolan, and it is one that we have taken on board. Whilst we have set out why we originally chose 20 years as a maximum sentence, we agree that there are some strong deterrent effects in having a discretionary life sentence instead. The Department would be open to that being considered as the Bill progresses.

Mr Bradley: Thank you.

The Chairperson (Mr Frew): Thank you, Andrew. What is the rationale for keeping the sentences in clause 41(2) and clause 41(3) the same? I have to say that:

is one thing. However:

is another. A person who has decided to drive a car under the influence of drink or drugs would get the same sentence.

Ms Bell: At the minute, those offences have the same maximum sentence, and we thought that it was appropriate to keep that. We consulted on whether it was appropriate to keep the sentences the same, and the answers were affirmative.

The Chairperson (Mr Frew): They are both causing a death or grievous bodily harm, but —.

Ms Bell: That is a maximum sentence, so, again —.

The Chairperson (Mr Frew): It is a maximum sentence, but you could be driving dangerously because you have made a mistake, or have not been paying attention, but, for the offence in clause 41(3), you are making a choice to get into a car and drive having taken drink or drugs. There is premeditation there.

Ms Bell: The definition of "dangerous driving" has quite a high threshold.

The Chairperson (Mr Frew): True. OK.

Mr Kingston: Mr Dolan's highlighted the issue of disqualification from driving applying during custody. In response to a question for written answer that I submitted to the Justice Minister, she confirmed that that is the case currently. She said:

Can you clarify where that is in the Bill? I have not found it.

Ms Bell: It is at clause 45, which refers you to schedule 6. Schedule 6 is a long and technical piece. The effect of it is that a custodial period will commence —.

Mr Kingston: Where is schedule 6?

Ms Bell: It is at page 52 of the Bill. You will see that there are a lot of technical provisions there. It amends the pieces of legislation where —.

Mr Kingston: It means that the disqualification will, effectively, start when the individual is released from custody.

Ms Bell: Exactly.

Mr Kingston: OK. Thank you.

The Chairperson (Mr Frew): The Department's response from 22 July states that the changes at clause 45 and schedule 6 should mean that:

Can you clarify if there will be any circumstances in which that would not be the case? Why have you used the word "normally"?

Ms Bell: It might be better if I come back to you in writing on that. It is complicated. It is to do with the different types of sentence that can be imposed and whether remand time has been served. It is technical. I would prefer to write to you.

The Chairperson (Mr Frew): That is no problem. I appreciate that, and I will appreciate the detail when we receive it in writing.

OK, members. There are no other questions on Part 7, which is very serious and very impactful. The evidence that we have taken, both formally and informally, has impacted the Committee. I wanted to say that. I thank members for seeking out that information and taking that evidence.

That just leaves Part 8, which is titled "General". Within that is the all-important clause 50, "Commencement". When will you consider bringing in Part 2, "Suspended sentence orders", and Part 6, "Particular persons or groups", under which is "Aggravation by hostility" and "Aggravation by reason of vulnerability"?

Mr Dawson: On Part 2, "Suspended sentence orders", we covered at the previous meeting our need to provide for the additional costs relating to that. I cannot give you a date today, but, essentially, commencing it by order allows us to get the financial arrangements in place. As you will be aware, that is a bit up in the air across the board at the moment. Unfortunately, I cannot risk giving a time frame today, but that is the reason.

The Chairperson (Mr Frew): We cannot get a time frame, but that is the rationale for why commencement is by order.

On Part 6, it strikes me that we could have a period in which you have done the work in the next term, yet this bit has not been commenced. Can you commence it all at the one time?

Mr McElwee: We plan to commence the "Aggravation by hostility" provisions alongside the related provisions in the Victims and Witnesses of Crime Bill.

The Chairperson (Mr Frew): Yes, of course.

Mr McElwee: We intend to commence those at the same time, because they are, essentially, one and the same.

The Chairperson (Mr Frew): I take it that there is commencement by order in the Victims and Witnesses of Crime Bill?

Mr McElwee: Yes, there is.

The Chairperson (Mr Frew): So, you could end up having both bits running.

Mr McElwee: We need to engage with our criminal and justice partners on the relevant training that will be needed. IT changes will probably be needed to capture the different data. The PSNI, for example, told us — I do not want to be held to this — that it will take six to 12 months for it to put everything in order to allow for commencement.

The Chairperson (Mr Frew): I remember the PSNI saying that in some of the evidence that it gave. I get that 100%.

Has any thought been given to the hostility aggravator piece? I will go back here a wee bit, so forgive me. At the minute, we record hate incidents. Has the Department given any thought to how we should legislate for that? It is a massive grey area. There is a lot of concern out there about the fact that, when someone has been caught up in an incident that was not a crime, that is now on a register or a list or their record and could impact on them in the future.

Mr McElwee: There has been no thought about legislating on it. It is more about police practice; it perhaps arises from the Macpherson report, so it goes back a number of years. The Police Service instruction is that, if it is not necessary to take a name or any other further details, that is fine, and there does not always need to be a full recording of the incident. However, no, the Department has not had no thoughts on that.

The Chairperson (Mr Frew): As there are no further questions, that is it covered. Thank you very much for the two sessions. It has been very helpful. We went into a lot of detail, breaking the Bill up into its Parts. We really do thank you for your time, your expertise and your work on the Bill.