Naomi Long
East Belfast · Alliance Party · Northern Ireland
“Underneath the Facebook posts to say that he had passed away, people speculated with such comments as, "Probably high on drugs", "Probably drunk", and, "Typical boy racer". There was all of that speculation. It was hurtful to the family, and it was inaccurate.”
“There are circumstances that we need to consider and be careful of. I was told, for example, that, when the issue of good character references at trial was being looked at in New South Wales — Committee members may wish to look at this for themselves — one of the groups that opposed their removal was representative of domestic abuse victi…”
“It sets out the strategic direction adopted by the Department and key partners to tackle those appalling crimes and protect vulnerable victims of exploitation.”
“The provision seeks to provide protection, via legal advice and representation for complainants, against the use of non-relevant personal material and evidence of previous sexual history being used in the court process.”
“<BR /> <BR />On the wider issue of ensuring that a withdrawal of services never happens again, I think that most of us agree that, although everyone has the right to take industrial action, no one has the right to derail and hold to ransom the entire justice system in that way.”
“Those measures will go some way towards helping to support complainants and enable them to have input into the decision-making process about what records containing their personal and sensitive information are required to be shared with the defence.”
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“The fundamental point here is that they were designed for people who are 14 and above in recognition that children, as they grow up, are more competent to understand the consequences of their actions. The evidence and advice is that, below the age of 14, they are not competent to do so, which is why we avoid custody, insofar as that is possible, for all but the most serious offences. Similarly, children who are over the age of 14 are able to be held more accountable for their actions in exactly the same way in which, with respect, we recognise that even young people who are above the age of criminal responsibility and, indeed, over 18 may not be fully mature in how they process information. That is why we have not just a juvenile justice system but a youth justice system. We know much more about brain development now that we used to know.”
“The Member is actually making a really strong case for why it should not apply to under-14s. If over-14s are coercing young people to get involved in criminal activity, it protects them from being criminalised and, instead, treats them as they ought to be treated: as the victims of trafficking.”
“<BR /> <BR />With that said, I draw my remarks to a close.”
“People have said, "Well, how can you exercise a right that you don't know you have?" Part of the role of the biometrics commissioner will be to raise awareness of the biometrics structures that we are placing in statute. I was also asked directly whether the biometrics commissioner would be able to make recommendations and suggestions and to report on the operability and effectiveness of what we pass today, should we do so: the answer is, "Yes, they would". It would then be incumbent on the Department to consider those recommendations and the feedback, which would form part of the annual report. That report would be laid in the House, which would give Members around the Chamber the opportunity, if they so wish, to seek further changes in future in primary legislation to what we are proposing today.”
“The amendment also contains some issues that are within the competence of the Assembly and to which I do not primarily object, but they would be more appropriately addressed through updates to PACE code D. That would be subject to public consultation, and the revised code would then be introduced alongside the new retention framework. While I have some sympathy with what the Member is trying to do, I cannot support his amendment today. <BR /> <BR />I hope that I have been able to offer the reassurances that Members have sought. A question was asked about reporting and scrutiny regarding the biometrics commissioner. In terms of awareness raising, this is key.”
“We know how far justice is devolved, and it does not include terrorism. It does not; we know that. That was the case at devolution and has been ever since. That is recognised. We would not have the oversight. Our biometrics commissioner would not have the oversight of NSDs. How would we inform people about changes to their NSD, if we were not in charge of that and our biometrics commissioner had no oversight of it? The UK Biometrics and Surveillance Camera Commissioner has responsibility for that. They would have to do what you suggest around notifying anyone of a change. I cannot impose a duty on the UK Government. We are talking at cross purposes.”
“We intend to commence the new framework as soon as is practical. <BR /> <BR />I will clarify issues with Gerry Carroll's amendment. As I said at the outset, amendment No 38 includes a provision for individuals to receive written notification of when their retention period changes as a result of the making, removal or expiry of a national security determination. NSDs are not within our competence. They lie in the reserved space, and the UK Biometrics Commissioner has responsibility for their oversight. It is not possible for us to amend the Protection of Freedoms Act 2012, which is an Act of the UK Government. Paragraph 2(c) of amendment No 38 is therefore outside the Assembly's competence.”
“He has taken issue with my saying that it is not within our legislative competence, but it is not, and we have not sought the Home Secretary's permission to legislate on it today. We cannot legislate on reserved or excepted matters; that is recognised. We will need to work with the Home Office, coordinate and commence it alongside our new retention framework. The PSNI also requires time to develop, test and implement software systems to support the new framework. That will include testing with other criminal justice organisations, such as Causeway and Forensic Science NI. We believe that the Committee's proposed commencement arrangements would work and that we would be able to meet them. If we can move more quickly, we will do so, but much of the work is substantial and lies outwith my Department's responsibility.”
“We need a qualifying offences amendment order; prescribed circumstances regulations; review mechanism regulations; a PACE (Northern Ireland) code D revision order with a revised PACE code D; and a PACE (NI) application order. We need sufficient time to consult on those measures, draft legislation and progress each instrument through the Justice Committee and the Assembly's affirmative resolution procedure, and it will be an affirmative resolution procedure. <BR /> <BR />In parallel, the Home Office is required to legislate on excepted matters, including arrangements for national security determinations (NSDs). The excepted legislation to which the Member refers in his amendment is something that we cannot legislate on in the House.”
“The Department will work to have the regulations in place for commencement at the same time as the legislation covering the retention of fingerprints and DNA. <BR /> <BR />It is important to recognise that work is ongoing in the Home Office on images and how they will be held. It is useful for us to be consistent, because people may be arrested for different offences, some of which fall within the devolved legislative framework and some of which do not. It is important that people understand clearly and can draw on comparators for how their photographs may be used and how long they may be retained. <BR /> <BR />I am also content with the proposed Committee amendment on commencement arrangements. The Committee has suggested five years. To be clear, part of the issue with commencement is that considerable work needs to be done.”
“Part 1 focuses solely on DNA and fingerprints because the Department's immediate priority is to address the compliance issues arising from the amendments to the PACE (NI) Order made in the Criminal Justice Act 2013 that were never commenced and related solely to DNA and fingerprints. The retention and use of photographs is a more complex issue, and it is important that sufficient time is given for proper stakeholder engagement and full public consultation; I agree with the Member for West Belfast in that regard. I am, however, content with the proposed Committee amendment, which will enable officials to take forward essential work in that area, informed by developments elsewhere, including emerging legislation and technological advances.”
“The work that it does to divert young people from offending, from interaction with the police and the justice system and from negative engagement in their own communities is vital and excellent work. None of us wants to unpick that, but, equally, if someone is offending repeatedly as an under-18, that has to be taken into account in how long their DNA profile can be held at the maximum. That does not mean that, if that young person grows up and applies for a review of the decision because they have settled and are now a different person, that will be refused. <BR /> <BR />I will move on to the issues around photographs, about which much has been said.”
“Where it is their first offence, there is no presumption that they will go on to reoffend. The period for under-18 cautions, including a restorative caution or an informed warning, is five years. The period for an under-18 diversionary youth conference is five years. <BR /> <BR />It is also important to note that special considerations are given to under-18s by way of the review mechanism, which, again, will be subject to consultation, so that we can look at how we ensure that under-18s, including, in some cases, those who have committed quite serious offences, are not unnecessarily criminalised. That is something that I believe in, and I have defended the work of the Youth Justice Agency at the Dispatch Box many times over the years.”
“If the sentence is other than a custodial one, the period is five years. <BR /> <BR />The period for an under-18 who is convicted of a first minor offence and receives a custodial sentence of less than five years is five years plus the length of their custody. It is therefore five years, which is the same as if it were not a custodial sentence, plus the length of the sentence. The period for an under-18 who is convicted of a minor offence with a custodial sentence of less than five years but who has a previous conviction moves to 25 years, because they are a repeat offender. It is logical and proportionate to do that, because, if somebody has reoffended, their data and DNA may be more useful in future cases, should they have a propensity to reoffend.”
“Part of the reason that we desperately try to do early intervention with young people is to keep them away from the justice system. Once they enter the formal justice system, there are long-term consequences, of which this is a necessary one. <BR /> <BR />I will now speak about the specific special arrangements for under-18s, which are set lower than those for adults. The retention period for an under-18 who is convicted of a first minor offence and receives a sentence other than a custodial one is set at five years. The vast majority of young people under the age of 18 are not held in custody. The vast majority, particularly those under 14, are dispensed with by way of alternatives; indeed, there is an increase in the use of non-custodial disposals for those aged between 14 and 18.”
“<BR /> <BR />Much has been said about the issue of age, and much will be said about it in the days to come, as we look at, for example, the minimum age of criminal responsibility. Northern Ireland Statistics and Research Agency (NISRA) statistics show, however, that a greater proportion of youths than adults go on to reoffend. Since 2010-11, the rate of reoffending has also generally been higher for those who committed their first recorded offence in their early teenage years, while that rate steadily declines as age increases. Those are the statistics that we need to look at. There is therefore a need to retain material from under-18s for a period to assist with solving future crime and to act as a deterrent against future offending.”
“I am often criticised and scorned when I stand here and say that something is an operational matter for whichever body it may be. It is important that, when people are there to provide public confidence and have an independent role, we do not meddle politically in their independence, and so it must be with the biometrics commissioner. Nor will they be answerable to the PSNI, quite the contrary. The only reporting that is required is as for any sponsorship arrangement between a Department and a commissioner. The biometrics commissioner will submit an annual factual report to DOJ on the exercise of their functions, and that will be laid before the Assembly for Members' information and scrutiny. That does not compromise their independence in any way. The biometrics commissioner will not be accountable to the police, nor could they be so.”
“<BR /> <BR />I have no doubt that Members have come to the Chamber with other amendments in good faith and with good intent. While I understand the intention behind the amendments, I cannot support them. I suggest that, given that the Committee was unable to agree a series of amendments collectively over the past 18 months that could have been tested more fully in cooperation with the Department, it would be unwise to make those changes at this stage, as they could change or make unworkable or indefensible the regime that we have put before you today, which has carefully balanced those rights. <BR /> <BR />I want to be clear about the independence of the biometrics commissioner. They will be absolutely independent in discharging their duties.”
“That reflects the guidance that we have from the court and takes into account good practice from the frameworks across Europe without being slavish in following them. It also removes indefinite retention. It has different retention periods for minor recordable offences and more serious qualifying offences, and it means a reduction in retention periods for those convicted of less serious crimes and for children. I think that we are agreed that all of that is good practice. The proposals strike an appropriate balance between the article 2 and article 8 convention rights that engage with DNA profiles and fingerprinting and balance properly the protection of the public, the ability to investigate crime and the human rights of individuals.”
“That report sets out that Estonia, Finland and Luxembourg hold biometric data until the offender dies, and they factor in various timelines for retention after death. Slovakia and Latvia hold material for at least 75 years. Denmark holds material until the offender reaches the age of 80. The Netherlands retains DNA profiles of convicted individuals for 20, 30, 50 or 80 years, depending on the seriousness of the offence and the conviction. <BR /> <BR />While all those were possible models for us to consider, it was the 75/50/25-year retention period model, which included a review mechanism, that we considered, human rights-proofed, took legal advice on and stress-tested with our operational partners.”
“<BR /> <BR />The 75/50/25-year model was developed following consideration of Sunita Mason's review of the criminal records regime in Northern Ireland, which recommended that criminal record information should be kept until the subject reaches the age of 100. Limited information is available on retention regimes across Europe, but there is certainly no standout country that sets the standard for good practice. As part of policy development, in 2020, the Department considered the 2014 report by Kristiina Reed and Denise Syndercombe-Court, entitled 'A Comparative Audit of Legislative Frameworks within the European Union for the Collection, Retention and Use of Forensic DNA Profiles'.”
“The new 75/50/25-year retention framework, along with the new review process, addresses those findings in full. <BR /> <BR />I am not saying that it is the only available model. Other models are available. Members have referred to, for example, the Scottish model. However, I caution Members that the Scottish legal system is different from ours. For example, cases can be determined not only by finding someone innocent or guilty but by reaching a verdict of "not proven". We do not have that verdict here. The Scottish system takes a different approach in the retention of data in those circumstances. Simply lifting and transposing arrangements is not necessarily best.”
“That judgement was also helpful, as it gave guidance on how a compliant retention framework in the UK might be structured. On the basis of that, it appears that the way to do that is to ensure that any new retention framework takes account of the seriousness of the offence, any continuing need to retain the biometric material for policing and criminal reasons and that a review process is in place to allow individuals to request the deletion of their material, which would include taking into account possible changes in their personality and, presumably, their likelihood of further offending. It should also take into account the age of the person when he or she was convicted and the length of time between the offence and the end of the retention period.”
“I appreciate that. That is the point that I wish to make. <BR /> <BR />On the background to Part 1 of the Bill on biometrics, a number of Members mentioned the Gaughran and Marper judgements. In S and Marper v UK, the court held that holding biometric material of a non-convicted individual is a violation of their right to respect for their private life under article 8 of the convention. That is what the provisions are designed to address. In Gaughran, the court held that the indefinite retention of biometric material of persons convicted of an offence punishable by imprisonment without reference to the seriousness of the offence and in the absence of any real possibility of a review was a breach of a person's right to respect for their private life under article 8 of the convention.”
“However, I caution Members against voting for individual amendments to that regime that have not been stress-tested with operational partners, given that, even though the Department had developed those over a number of years, stress-tested them with partners and then had to come forward with further amendments, to change the Bill at this stage, without having done that due diligence, endangers what we are trying to achieve, however well-intentioned those amendments may be. <BR /> <BR />With respect to the background to —.”
“Therefore, it is important that we are able to respond, because this will be the only wide vehicle that will be available in this mandate to make changes to justice matters, with the Bills that deal with sentencing and victims and witnesses of crime being much more constrained in scope. <BR /> <BR />Biometrics, however, which is the group that we are debating, were contained in the Bill at introduction. The amendments that are being made are to make them operate as intended after the stress-testing that we did. Of course, under normal circumstances, that stress-testing would be done before we introduced the provisions.”
“Thank you, Madam Principal Deputy Speaker. I am encouraged by the engagement that we have had today. It was a good debate with a good exchange of views, and I thank everyone who contributed to it. It was very helpful. <BR /> <BR />At the outset, as comment was passed on the extent to which the Bill has been amended, I say that that was well rehearsed at Second Reading, and we had the conversation about it. I say it again: there are reasons for the many amendments. Two and a half years of a suspension and our limited mandate on coming back meant that we needed to get the Bill introduced. We had a year and a half in Committee Stage, and many unexpected things emerged during that period.”
“What I said was that the second part of the amendment would be dealt with through PACE codes. The first part of the amendment does not fall within the competence of the Assembly, because it relates to terrorism offences and other reserved measures. You cannot pass one part of the amendment without passing both parts. That is why I suggest that Members resist that amendment, but I offer you the reassurance that we are not actually opposed to what you are trying to achieve in the PACE codes being taken up.”
“First of all, the commissioner has to be appointed. The commissioner will also have to provide a report to the Department. That report will be a purely factual one on the operations of the commissioner during the previous year. It will be laid in the Assembly. There will be no opportunity for the Minister to interfere with the operations of the commissioner, but it will give the accountability that the Members opposite said that they wanted in that the report will be laid in the Assembly, and they will then be free to take up any concerns or issues that they have with the commissioner.”
“We are not stifling people's ability to scrutinise that, because I recognise that that is important. The issue is around the use of those photographs, which is a separate issue from their retention and how they are handled. There is no doubt that that will also have to be dealt with in short order around, for example, AI usage, facial recognition software and so on. However, that is a separate issue to the retention, which is what this deals with. If the Member is concerned about those issues, there will be other opportunities to deal with them.”
“I appreciate the Member giving way. He has been very generous with his time, as Members generally have been, which is good, because it is better that we have these open exchanges. <BR /> <BR />The reason that the Department did not put it in the Bill is because the work had not been done to bottom that out. Work was to be done by the Home Office and others, so the Department felt that it was not the right time to do it. The Committee, however — correctly, on this occasion — felt that creating an enabling power that would allow the Department to do it would, given the pace of change, allow us to go forward. To be clear, there will be public consultation as part of that. It will be done by regulation, but it will come to the House and will be subject to affirmative procedure.”
“It is also geared towards ensuring that children are given special dispensation, as is right.”
“The 50-year retention period is for serious offending and repeat offending. It is not as simple as saying that it is for all offending. Actually, the standard retention periods for young people are shorter, but they are also accompanied by an earlier review point in the system to ensure that young people can move on, as we all hope they do and as the Youth Justice Agency very effectively ensures that the majority of our young people who offend are able to, and have that data removed from the database. This is about checks and balances. There is no one right system. That was made clear by the Scottish Biometrics Commissioner, who said that there are a number of models that fit with the rules of the ECHR — not a single model — and that there is no gold standard anywhere. There are a variety of models, and this is one.”
“As I said, a case-by-case basis is neither practical nor does it give people sight of how long the data will be retained at the point when it is taken, whereas this model gives clarity and certainty. It also means that the data will be subject to review after a certain period because there are maximum retention periods, and the review means that, if the material is found to be no longer necessary for a policing purpose, it can be deleted. The model gives maximum retention periods, and it is important to distinguish that from standard periods.”
“That definition is supported by the European Court of Human Rights in the Gaughran judgement because the UK argued that its indefinite retention was similar to other member states that had long retention periods, and the ECHR ruled otherwise.”
“First, it is tied to the seriousness of the offence because the 75 years is for serious and adult offending. Secondly, it is proportionate because there are opportunities for people to seek a review of whether their data should continue to be held. They have the opportunity to go to the biometrics commissioner and request that the data be reviewed, and that gives the proportionality. It is not the Department’s interpretation of the Bill, and it is certainly not its advice. <BR /> <BR />"Indefinite retention" means that the period of retention is not defined, and it means that people cannot challenge whether the data can continue to be held.”
“It is a balance of rights, but it will ultimately come down to the biometrics commissioner deciding that a case is so exceptional that it requires a deviation from what is set out.”
“I am happy to do so. The purpose of the next stage of this, which is to consult on the powers of the biometrics commissioner, will be the decision point of what those thresholds will be. If you read what is in the Bill and the proposed amendments, the purpose is to ensure that those who are found innocent can have their data removed quickly and effectively from the database. Those who are found guilty will have it retained in a way that they can understand, and they can also understand how they can appeal that decision. Where a case remains open, the PSNI retains the data but has to check it every five years to make sure that the case is indeed under investigation so that data is not retained unnecessarily.”
“It is simply retained for a short period of three years and not for an extensive period.”
“That three-year period is to allow for where somebody has not been charged because the investigation may be ongoing. The police need a grace period during which they can hold and retain that data, and it may become pertinent at another point in their investigation. When someone is acquitted of a crime, it is a requirement of the law that their data will be removed from the database. Only by exception, where the biometrics commissioner agrees that it is necessary, will the police be allowed to retain it for longer. This is simply to ensure that, if someone is a person of interest regarding a criminal offence that is under investigation and is not immediately charged, but the investigation then moves forward, their data is not having to be asked for again.”
“We have already established via a number of interventions that, if somebody is acquitted, it is only in extreme circumstances — where the biometrics commissioner judges that it is necessary — that their data will be held. Otherwise, that would be in breach of human rights law. I am not sure why we are still repeating the myth that people who are acquitted of serious offences, or any offences, will continue to have their biometrics held. That is not the case.”
“I can do that now if the Member wishes to give way. It is absolutely clear that the commissioner will be independent of Ministers and independent of the PSNI and that their role is to provide independent oversight. If they instruct the PSNI to take an action, it will be a requirement that they do so.”
“The PSNI does a first-stage review and, if a complaint continues, it goes to the biometrics commissioner to adjudicate, and that decision is final.”
“The biometrics commissioner will not be answerable to the PSNI; in fact, the commissioner's decisions create a requirement on the PSNI to take action. Rather than the PSNI being able to direct a commissioner, the commissioner can direct the Chief Constable to remove stuff, and the Chief Constable would be obliged to do so. That is a flawed understanding of how the biometrics commissioner would operate. <BR /> <BR />It is important that the commissioner is completely independent and free to exercise their powers. As I said, that will come back by way of regulation and consultation, so that the Committee and others will be able to influence the shaping of those powers and responsibilities. There is no suggestion that the commissioner is answerable to the PSNI.”
“To be clear, when it comes to the independence of the biometrics commissioner, there is no question of their being answerable to anyone in a political sense. Indeed, we have stressed that we do not wish to constrain how the office would operate, in the same way that we respect the independence of the Policing Board, the Chief Constable and the Police Ombudsman. That is perhaps a flawed analysis. Whatever the checks and balances in the Scottish Parliament, it is a different construct from the Northern Ireland Assembly. We need to be careful about simply importing something from the Scottish Parliament when its operability here has not been stress-tested.”
“While I agree that contact with the formal justice system such as incarceration or other forms of custody are detrimental to young people's rehabilitation, the retention of DNA and fingerprint data has no meaningful impact on young people's ability to be rehabilitated after having committed offences. Indeed, I believe that it is helpful to young people who could be potentially eliminated from police enquiries who might otherwise, because of previous offending behaviour, be the focus of police enquiries when certain offences occur.”
“I thank the Member for giving way. I do not disagree with her about young people being brought into the formal justice system prematurely when there are alternative disposals. That is something that we will debate later on, as part of amendments to the Bill. However, the retention of DNA does not institutionalise or retain a young person in the justice system; the DNA is simply kept on record. If a young person goes on not to offend again, that data will never be relevant and will eventually be expunged, in most cases, after five years. It is only when the young person continues to offend that the data becomes relevant.”
“My apologies for intervening again. You mentioned more oversight of the commissioner: the purpose of the commissioner is to be entirely independent in the judgements that they make, so we need to create the office of commissioner and allow it to bring forward the guard rails around this but to be independent of government. It would be inappropriate for us to try to control the commissioner or limit or fetter their independence and discretion, because that would, effectively, mean our taking decisions on individual outcomes rather than leaving it for the commissioner, who will be appropriately skilled to do that. Certainly, that is how it has been done in Scotland and other places.”
“Furthermore, amendment No 13 would remove new articles 63L, 63M and 63O. That would take away the less stringent regime that we have put in place specifically to deal with people who are under 18. Therefore, while it may be well intentioned, I am concerned that it would dismantle some of the protections that the Department has drafted into the Bill with regard to biometrics for young people.”
“I thank the Member for giving way. I, too, understand that importance. He will be aware that I am committed to ensuring that, as far as possible, we remove young people from the criminal justice system at a young age in order that we can provide alternative ways to hold them accountable for their conduct and behaviour and ways that are more effective when it comes to outcomes in later life. <BR /> <BR />The difficulty — I will, no doubt, get the opportunity to set it out when Sinn Féin comes to discuss its proposals — is that, for example, the proposed new article 63JA in amendment No 12 introduces a three-year retention period for individuals under 18 who are convicted of a qualifying offence and a three-year retention period for a non-qualifying offence. It does not differentiate between the two. That has not been developed or tested.”