Talk for PRISON VISITORS on the Life Sentence Review Commission

By

Donal McFerran

Commissioner

I should open by explaining we are not the Sentence Review Commissioners. They are the people charged with releasing prisoners under the Good Friday agreement. We are the Life Sentence Commissioners with the duty of releasing life sentence prisoners that we consider to no longer be a risk to the public.

This is an overview of the work of the Life Sentence Review Commissioners to date and I will try and avoid this talk becoming too technical. I will take a little more time on the more important practical aspects of our work in areas where prisoners might raise matters with you. We are all new to the job as we have only been fully in operation for a little less than two years. We have had to undergo training and familiarisation and we have been evolving policies and approaches to some on the problems thrown up in what is a very new area of the treatment of prisoners. And tonight is also a first as you are the first body to approach us for a talk on our work. I am happy to oblige.

The Northern Ireland Life Sentence Commissioners are unique in these islands as they only consider the release of life sentence prisoners. In contrast The Probation Board in England considers both determinate and life sentence prisoners.

A brief History

There had been an extended struggle between the Judiciary and the executive as to which of them should decide how long a prisoner on an indeterminate life sentence should remain in jail. You will recall names such as Myra Hindley, Thompson & Venables (Jeremy Bulger case) along with the then Home Secretary Michael Howard. For understandable political reasons the politicians wanted to maintain control on the length of sentences to be served by notorious murderers. For equally understandable reasons the Judiciary said "we are the proper persons to make these decisions as we have had the training and experience and more importantly we have heard the evidence." I paraphrase you understand.

A life prisoner in England decided to challenge his prolonged detention under the European Hum Rights Legislation - this is prior to the passing of the HR Act in the UK.

Strasbourg said that the politicians should have no part in deciding the length of sentences. They were very clear that these Judicial functions should be kept out of the hands of the Executive. In other words prisoners should not become political footballs. After that In England this duty passed to the existing parole board. In NI we had the LSRB. This was an anonymous board of civil servants, probation people and prison staff who decided if it was safe to make a recommendation to the SoState to release a prisoner. It was an entirely paper exercise behind closed doors and no one was there to speak for the prisoner or put his side of it. I am not criticising the people involved, but the system was clearly not HR compliant.

This "in camera" exercise was also tested in NI by way of judicial review and Mr Justice Kerr (as he then was) said we were bound by the Strasbourg decision and the procedures had to comply with a prisoners right to an open hearing by an independent judicial body. As there was no legislation in place, the old LSRB was rapidly and temporarily changed by bringing in independent judicial type figures and giving the prisoners rights of legal representation. These became interim Life Sentence Commissioners.

1 Legislation was rapidly passed and the Life Sentences (NI) Order 2001 came into force in July of that year.- recruitment was started and we are now a total of 25 Commissioners. There are 8 lawyers who at hearings, chair a panel of three. The Order also says one of the panel should be a psychiatrist or psychologist (and they form a third of the Commission) and the remaining third should have experience in the aftercare of discharged prisoners or studied the treatment of offenders.

We had a glitch at the outset of this process when tariffs had to be fixed by the judge. As you may be aware, a life sentence in Northern Ireland had been an indeterminate life sentence. The end of that sentence was determined by the old LSRB as I mentioned. A further decision of the European court said that the tariff fixing also had to be an open judicial process with representation for all parties. We could not make much progress until tariffs had been fixed. Our new LCJ Sir Brian Kerr undertook this task and began the tariff fixing very soon after his appointment and this potential logjam is now resolving. Out of a total life prisoner population of 130, only 43 remain to have their tariffs set at the end of Sept 04.

Commissioners Duties

The primary duty of the Commissioners is set out in Art 6 of the Order that when a prisoner has served the appropriate part of his sentence (now commonly referred to as a tariff) the Commissioners shall direct his release provided " the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined ." The prisoner is then released on life licence for the remainder of his life. All prisoners granted a life licence will have conditions attached and I will deal with these in more detail later. I should mention in passing that Commissioners have agreed a definition of serious harm . This has been published in our annual report so that legal reps can test us on our application of our own definition

"Serious harm is defined as death or serious personal injury, whether physical or psychological, arising from a criminal offence committed by the prisoner - and psychological injury should be understood as meaning serious psychological stress or mental illness"

Risk Assessment

2.

This is the single most important aspect of the Commissioners job. We have had extensive training in firstly understanding the technical aspects of this so we can more fully understand the terms and procedures that psychologists use in their discipline; and secondly making our own assessment in relation to the evidence we are presented with. Risk assessment will include the following

• Psychological understanding of the original offence and its motivation. This may involve an exploration of the context of the offence and how the events were understandable in terms of the offenders history, personality and emotional or mental state
• Progress and change in the prisoner during sentence . This involves looking at the changes in the prisoners behaviour, thinking and insight to his offence and the victims of his offence. How has he behaved on leave or why has he not been granted leave.
• Actuarial risk assessment.

There has been much development of test instruments to assess on a statistical basis the likelihood of some of a body of former prisoners re-offending. Most of this research has been carried out in the US and rather less in the UK. The templates used depend on many static and dynamic factors. Many of these factors taken together give us a predictor of future outcomes but only based on the researched groups. If this places the prisoner in a particular high or low risk group this does not enable us to infer that this prisoner necessarily falls into that category. No one has used a group on NI prisoners for this type of research as yet, so we proceed cautiously with the actuarial risk assessment.

• Individual risk assessment.
  These have a relatively poor predictive accuracy. Yet we have to consider specific aspects of the particular prisoners history, psychological features and social context to see if they help us in predicting future risk. There frequently are unusual features in cases that can be protective -and conversely other features that signal caution
• Assessment of the outside context
  Home leave and working out are good indicators of a prisoner who might settle peacefully in the community or the converse. Family and social relationships are very important in this context. Support and supervisability are equally important and need to be added to the mix before we can have a clearer picture

I have taken a little time to go into some detail on risk assessment as it really does lie at the core of what Commissioners are about. The other side of the topic of risk is management in the community which I will deal with after I talk about --

3. The Hearing

I have handed out the step by step guide for prisoners to help explain the next stages. It does contain a lot of detail but I will broadly outline the procedure coming up to an oral hearing and will take you through the main points in the document. [Click here for the text of this guide elsewhere on this site]

We do try to keep the hearing informal and Commissioners will from time to time intervene to clarify points or in an attempt to find out from a witness what they mean by a particular phrase. However when you have lawyers presenting cases their training does tend to make the proceedings more formal. The reports are given to us, the prisoner and SoState several weeks prior to the hearing. The SoS either opposes or occasionally does not oppose the prisoners application for release. The prisoner is entitled to call any evidence if he chooses but this is usually confined to family, friends or clergy. In effect, a man who has been locked up for many years does not have a lot of recent evidence he can call upon. He can rely on all the good points in the reports that have been given to him and there frequently are many useful and encouraging points in these reports for the prisoner. I don't recall a prison Visitor asking to attend but I see no reason to see why you should not apply to attend if the prisoner wants them there. The hearing is closed but permission from the chair can be sought to admit additional people. The proceedings however, are confidential and no one in the room may discuss the proceedings outside the room.

Legal representation for the prisoner is free, though we do restrict representation to one solicitor and one counsel. The report makers attend the hearing to expand upon their report and can be asked questions examined on its contents. (we try to avoid phrases such as cross examination but regrettably the lawyers treat it as such.) By the way, no one is sworn in or takes an oath The panel is not bound by the strict rules of evidence as in a court room but most chairs will not permit the introduction of information which takes any party by surprise or might be considered unfair or prejudicial in the particular circumstances.

If you have been in a criminal court you may have seen how strictly each piece of evidence needs to be proved. Its source and provenance. You call the man who took the photographs - you call the man who took the statement and of course you call the witness who saw the events or identified the accused. We are not troubled by any of this formality. {I should just interject here that the burden of proof is on the prisoner to show that he is not going to be a danger on the Community.} However, if any information comes to our notice which we feel bears on the assessment of risk, we will take this into account in making our decision. It may strictly be hearsay or second hand evidence but if it is information that fills in some of the picture on risk, we are bound to consider it.

We can also adjourn the hearing to obtain any information we feel we need before making a decision and should be before us. This includes summoning of any witnesses we feel we should also hear. This inquisitorial aspect to our job is entirely different from a court, where the case rests on the evidence the parties decide to produce. Many court cases are decided without the court seeing more than a fraction of the evidence available. Our more extensive powers are designed to probe these dark recesses.

We can be presented with a confidential report which has been withheld from the prisoner. These are usually of a security nature and neither the prisoner or his lawyer gets to see it.. The report will have been shown to Commissioners some time before the hearing and arrangements made for the appointment of a special counsel by the Attorney General, as even the prisoners counsel is not allowed to see the report. We do not expect we will get many confidential reports of this nature, but the procedure is in the Rules to deal with it when it arises.

Conditions and Management in the community

The conditions imposed are of course to protect the public but also to discharge the further duty of the Commissioners under Artl 3 of the Order for "prevention of further offences and securing the rehabilitation of life prisoners".

•  Some examples of standard and additional conditions.

There are eight standard conditions which I will read to you.

As I mentioned in going through the Guide to Prisoners the SoS is not bound by all conditions we set out as some of them may be difficult to carry out. But the SoS cannot impose any conditions we have not approved. So some consultation between the Panel and Probation is advisable to make sure we are not asking for the impossible -- consistent of course with our duty for public safety. Cries of lack of resources are frequent but the European Court has made it clear on a number of occasions that this is not an excuse where some person's rights have been infringed.

This rehabilitation of the prisoner comes early in our procedure. The Prison Service as I'm sure you know, runs a number of different courses for life prisoners. {Enhanced thinking - anger management - sex offenders as well as all of the educational courses available all the prison population.} We do occasionally come across prisoners who have not done the courses for a variety of reasons, often because they refuse to do them and it is the Commissioners view that usually the public will be safer if the prisoner completes these courses. **The courses also have the advantage that the prison staff will be better able to assess how the prisoner is adapting. We get reports from the LMU and prison psychology which we consider at the hearing along with PBNI report about what conditions may be like on release such as jobs, family support, community problems etc.

**I might just mention here that some problems are going to arise with separated prisoners. As far as I know there are about 3 or 4 lifers in the separated accommodation and they are not co-operating with staff or probation. This must mean real difficulties for the report writers and for Commissioners who have to assess what a risk they are going to be to the public. Most are some time from the end of their tariff so the problem is not an immediate one.

To ensure the prisoner has considered the importance of these courses, we begin looking at the prisoner about three years before the end of his tariff. We start this process off by inviting the prisoner to an interview with one of the Commissioners. One who is not a lawyer. At this interview we will want to know his attitude to the offence, what courses he has done in prison and how he feels he will cope if he is released. The interview can last several hours and some of the reports would commonly be up to 10 closely typed pages. The Commissioners who does this interview reports to a panel of three who then consider and make recommendations to LMU as to what work might be undertaken to prepare the prisoner for release.

5

I will read a brief extract here from the conclusion of a report to give you a flavour

This report is one of the first we have had and was prepared by Nigel Stone who has many years experience on the English Probation Board and in conducting these type of interviews

The onerous duty of supervision in the community falls on the NI Probation Board and all the Commissioners have formed the highest opinion of the work the Board does and the personnel charged with the job on the street

Recall prisoners.

As I mentioned prisoners released are on licence for life but if they breach any conditions of their licence or become involved in serious offending the SoS can revoke the licence and refer the matter to the Commissioners.

6 (Revocation Letter) This category of case is not infrequent and is brought on for a hearing as soon as possible after the prisoner has been returned to custody - usually in 6 to 8 weeks. This process is usually precipitated by the prisoner being arrested and the SoState asks us to decide as in the original hearing, whether this prisoner is a risk to the public and if his licence should be revoked. It is important to emphasise that we take into account the conduct of the prisoner. The conduct leading to recall may also be the subject of a criminal charge for example We can look at the events regardless of whether it has been dealt with by a court or not. We will also deal with it even if the prisoner is acquitted of the charge. Our duty is to decide if the conduct gives rise to the risk to public safety on the balance of probabilities and we are keeping at least two prisoners in that I can think of in these circumstances -- one of whom had the charges withdrawn before the matter went to court. That I think illustrates our approach to risk. A man may be acquitted for all sorts of technical reasons in a court -- and quite properly acquitted, but if we decide on balance he was involved in some activity that we think is risky, he stays where he is. Some legal reps are quite keen for us to hear these recall cases in these circumstances quite quickly and before the court hearing, as they feel their client will have a better chance of release if he does not have a further conviction. Well perhaps so, but we look at all the circumstances leading to recall for our purposes and what happens in court is secondary. It also indicates that we are not bound by the strict rules of evidence as I mentioned and this illustrates the difference between our hearing and those in a court. (Example of violence towards women - video etc".

A recall prisoner can only be released by an order of the Commissioners. I should mention that the SoS can also consult us in cases of compassionate release. He does not need to do this in every case of a family funeral of a medical emergency, but obviously can decide for himself if a case is of sufficient gravity or complexity. Even in compassionate cases, the Commissioners need to look at the potential risk to the public. The Commissioners have also interpreted their rehabilitative role in a broad fashion and have consulted with the NI Probation board as to their methods and procedures and we can take up directly with the SoS matters which we feel would be beneficial in the rehabilitation of life prisoners.

One of the deficits we detected in the local prison system when we compared it to the English system, is that we do not have an open prison to which prisoners can progress prior to release. We do have the Working Out scheme and it works very well, though it does have its limitations. I'm glad to say that when we enquired as to what the possibility of an open prison here is, we were told that the Prison service is now engaged in developing the ground work for an open system at Foyle View in Magilligan. Some of you may be familiar with it.

I expect a few figures will be of interest to you. There are around 130 life prisoners in Meghaberry. We have considered 28 cases since we began our work. We have recommended the release of some 11 prisoners. We have "knocked back" 17 for review in a years time, as work needs to be done or we need to see how they progress on various courses.

Conclusion

The Commissioners prime purpose is to assess risk and protect the public. Assessment of risk as you may have gathered is not a scientific process. We will continue to do our best to create a proper balance between the rights of the prisoner and the protection of the public. We have to bear in mind that there is no case without some element of risk. However, the risk can always be contained by proper management in the Community. We question closely probation and what safeguards will be in place on release, and only when we are satisfied with them and the prisoners intention to comply with them, can we make the important decision to release - and hope not to see the liscensee again.