The Northern Irish government has just completed their initial consultation on changing spending periods for criminal offences, spurred by a judicial review brought by the Northern Ireland Human Rights Commission (NIHRC). While that is outside of Unlock’s normal catchment area, we have been following the case closely and working with our colleagues at NIACRO to try and make the most of this opportunity for change.

While any real changes in Northern Ireland are still some way off, this is a good opportunity to talk about the nature of government consultations, and what we can learn from Northern Ireland.

The biggest take away is that strategic litigation really is an effective tool in creating change, and vindicates Unlock’s goal to continue using it. The NIHRC case is extremely meaningful in its own right, but even before the arguments have been heard Stormont have rushed to address some of the concerns. Whatever decision is reached, this one case will result in meaningful changes that impact thousands of people. This is extremely encouraging, and Unlock was happy to support the NIHRC case.

Next, the policy options that the Northern Irish government consulted on were an interestingly mixed bag. Northern Ireland hasn’t had a significant change for spending periods since 1978, and Stormont is not required to follow along with England and Wales, so it’s understandable they have come up with their own options – but they were still a bit odd.

They did offer two possible reforms to address concerns about longer sentences never becoming spent. However, each one was only half of the proposed version in England and Wales. Option one was to simply raise the threshold for a sentence that can’t become spent from two and a half to four years. This update would match the present England and Wales system, but not include any changes from the sentencing bill.

The other proposal was to allow some longer sentences to become spent, depending on the conviction – but offences classified as violent, sexual or terrorism related would still have to be disclosed for life if the sentence was longer than two and a half years.

The proposed version in England and Wales is to use a list of offences and a longer threshold for lifelong spending, and it was not initially clear why Stormont would break these two aspects apart. If they were going to follow the England and Wales system, it would make more sense to copy it fully. However, Unlock sat in on some of the Department of Justice’s feedback sessions, and it seems that the concern for the civil servants is drawing up reforms that can be actually be passed through parliament.

To some degree that is disappointing, because a really ambitious set of reforms seems unlikely. At the same time, we do need to stay grounded to this reality. Reforms are unlikely to go as far as we might like, and both MPs and the general public might well be less well informed than we might hope. However, positive reforms are still positive, and we should be aiming to make them happen. It might not be ideal, but changes that actually happen help more people than those which are too radical to be accepted.

Another interesting factor in Northern Ireland is that certain terms have a different meaning, highlighting that language can be much more politicised than we might think. In England and Wales, ‘terrorism’ is a little contentious but in Northern Ireland that is an extremely emotive term, with decades of history and injustice behind it. We don’t even have to leave the UK to see that the question of who exactly is a terrorist is not easily answered.

This is even more relevant because most conflict-related convictions are really quite old at this point, and so would immediately become spent if they were ever eligible. That means that charging decisions made in the 1960s would come back to haunt the justice system yet again, with questions about unequal application of the law to different communities.

This same effect is just as true with the other categories of offences that will be exempt from becoming spent. What is a violent crime? And what is a sexual offence? In Northern Ireland the Department of Justice at least intend to write a new list to address this, which is something. In England and Wales, the government are proposing to use a pre-existing list drawn from 20 year-old legislation. Again, you do not have to travel far to see how these dodgy definitions will cause problems, and may create systematic injustices.

The flurry of activity in Northern Ireland is a microcosm of what we are seeing in Westminster, and helps to show how even relatively small differences actually become huge concerns for this area of law. Simple rules that reduce the length of spending periods are clearly better than the periods we have at the moment – both in England and Wales and in Northern Ireland – but we can already see the difficulties in applying them on a large scale.

It seems increasingly clear that whatever changes are made to either system in the coming year, there is going to be a lot more work to do. We are seeing more and more that very broad categories just don’t work well and that we need a real paradigm shift. Creating an independent review mechanism seems the obvious first step, although few politicians ever want answers that will cost them money.

Unlock will continue to push for these changes until all people with criminal records the chance to live a normal life. It may be a hard fight, but we do believe it can be won.

Written by Sam Doohan, Policy Officer for Unlock.

Further reading

1. NIHRC challenge spending law
2. Department of Justice consultation
3. NIACRO’s website