Paul Frew
North Antrim · Democratic Unionist Party · Northern Ireland
“I thank the Minister for that intervention. Nevertheless, there are concerns that I want to address. The Minister and the departmental officials will know that, even from the range of questions that I have asked. We need to make sure that we get the balance correct.”
“In the written and oral evidence received then, the Committee was advised of potential amendments that the Minister may table at Consideration Stage, including an amendment to remove the commissioner that is being considered in liaison with OLC.”
“That in itself causes some victims and witnesses bother, because they are in a system that they are not part of, which means that they do not get the support that they require. That can sometimes leave them feeling retraumatised, as though they have been put through the wringer again.”
“The Bill makes provision to offer those protections and provide clarity to victims that they do not have to face their perpetrator in court. <BR /> <BR />Members asked questions about a range of matters, including the independence of the office, the ability to review the performance of any future commissioner, the costs of establishing th…”
“I thank the Minister for her intervention. She was absolutely right to take that action, as it means that victims' voices are right at the heart of the matters under discussion. It is now obvious to us that that should have been done years ago, but it is good that it is being done now.”
“Officials explained that the Bill would legislate on the disclosure regime not to prevent an application for disclosure but to set out a process whereby the defence would have to show the relevance of the information that it was requesting. That is an important protection.”
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“I will give way in a minute, Minister. <BR /> <BR />— will that be recorded and will they fit into the PPANI arrangements? That is a fundamental question that we need to assure ourselves of before we walk into a Lobby. <BR /> <BR />I will give way to the Minister.”
“Does a child have the right to plead to a lesser charge that is not listed in the amendments, or does that child walk from court? There is also the issue of the PPANI arrangements. When a child aged 12, 13 or 14 commits a sexual activity — we are not sure yet whether it is a crime or an offence —”
“I worry that we have done this about-face. We should have the frameworks in place with end-to-end pathways, whatever that means, and with specific protocols, whatever that means, to do away with harmful behaviour, whatever that means, before we tackle the age of criminal responsibility. We have got it the wrong way round, and that is why it is so important to take stock, take a beat and consider what we are going to do tonight. <BR /> <BR />It is really important that people address the two issues that I have raised. How do you plead to a lesser charge if you cannot be convicted of that lesser charge in a court? That is fundamental to our court system. No one has been able to make an intervention tonight that solves that issue.”
“The Member makes a really good point. That is why we need to do more of it and more extensively in order to save more victims and get more child perpetrators away from reoffending, crime and organised crime gangs. <BR /> <BR />We do justice differently for young people and children than we do for adults, and that has been the case for a long time. That is why we do not send children to prison. That is why we have youth courts and restorative justice for children. That is why we have diversionary tactics and programmes for children. We already do that, and we need to make sure that, at the age of 10, 11, 12 and 13, children can avail themselves of those programmes. That is important. If we pass this today, those children will not be able to avail themselves of a system that is already tried and tested and works to some effect.”
“I thank the Minister for her intervention. All the good stuff that the Minister has talked about, albeit scant in detail and quite fluffy at this time, is what her Department and other Departments should be doing anyway to make our justice system better.”
“We have heard that there should be a framework in place to discourage harmful behaviour — that means crime, folks — and that there will be end-to-end pathways and specific protocols. Well, I ain't seen anything yet.”
“I completely agree with the Minister, and that is why we do not send children to prison. She talks about the law needing to catch up, but what we really want to see is this: all the systems that the Minister has just talked about wrapping around those children before we even touch the age of criminal responsibility. If those areas were covered, if we treated people fairly, victims and perpetrators, especially young perpetrators, and gave them justice and accountability, we would be in a far better place to look at the age of criminal responsibility and make an informed choice, but we are not there yet. We are still failing victims and child perpetrators on a range of issues, one of which is that it is a big, dark world out there, with evil perpetrators exploiting children and victims. <BR /> <BR />We have heard rosy, fluffy words tonight.”
“I thank the Member for her intervention. Should our criminal justice system not be the welfare system as well? Why does it have to be one or the other?”
“I thank the Member again for her intervention. The Youth Justice Agency told us in the Committee that there is a fear in them that, if it gets children at the age of 10, it can work with them and make a difference. If it gets that same child at 13 or 14 years of age, it fears that characters have already been maintained and practices have already been deployed and entrenched, and it could not overturn the habitual behaviours of that child that it could have when they were 10 years of age. These are massive issues that we are grappling with here, and we need to make sure that the step that we are taking is the right one. I see nothing filling the vacuum being left here when we increase the age of criminal responsibility. We have heard —.”
“I will give way. We will get into that later, Gerry.”
“I thank the Member for her intervention, but how is raising the age of criminal responsibility going to stop that victim from being victimised again? There is an issue here. There are many children out there of all different ages, understandings, mental growth, development and everything else, but there are a number of children who will reoffend again and again if they know that there will be no criminal consequence to their activity. I will give way to Gerry.”
“I will finish my point first, and then I will let you in. <BR /> <BR />You are basically saying that you are scared of the public uproar. Be honest with the people in here and the people outside. Sian said that it was about public confidence. You are basically saying that those are the most serious offences. If it is about the brain development of a child, how can they be guilty of murder but not guilty of threats to kill?”
“I am grateful to the Member for her intervention, but she is basically admitting that she is scared of a public uproar. If someone below the age of criminal responsibility that you are going to set commits the crime of murder —.”
“The Member will have heard me state that Professor Kevin Brown believes that the age should be raised. I do not dispute that, but Professor Brown raises serious questions: someone who is on that side of the argument raises real and valid concerns about the list of offences, and we must take that into consideration. If a person is in court and processed for one of those listed offences, will they be able to plead to a lesser offence? What will happen if they do? The first question is whether they can do it: can they plead to a lesser offence? The justice process basically entitles them to do so. If they do plead to a lesser offence, will they walk from court?”
“By raising the age of criminal responsibility without having in place a suitable and robust framework that brings accountability and satisfaction for victims and child perpetrators, we are in danger of distorting the justice process for the young perpetrator. Not only that: we are in danger of distorting the public protection arrangements Northern Ireland (PPANI). That is how serious it is. I will take an intervention from anyone who wants to address the PPANI issue. How will those offences be recorded? What will they be recorded as? Those are very serious matters. <BR /> <BR />I will give way to Mr O'Toole.”
“I will finish the quote, then I will give way. Professor Brown continues:”
“I was going to talk about Professor Kevin Brown. He thinks that the minimum age of criminal responsibility should rise but says that he is concerned about the listed crimes, and here is why:”
“I thank the Member for her contribution. She is quite right. I have been involved in keeping children out of the criminal justice system and working with the police to ensure that they do not get a criminal record. I have been through restorative justice programmes that have resulted in a decent outcome for the perpetrator and the victim that the victim was satisfied with. That is all work that takes place in our criminal justice system currently. As has been mentioned, we are in danger of throwing the baby out with the bathwater. I really worry about the step that the Assembly could take tonight, which could jeopardise victims and young people. I ask Members to be very careful about how they proceed.”
“What we need is a system involving Education, Health, social services, Communities and everything else that wraps around the criminal justice system and allows us to better inform the criminal justice system in order to better protect not just victims but child perpetrators. I think that we can all agree on that. Saying that we can simply change the age of criminal responsibility here tonight without having any of that substance in place is just frilly words in a very dark world.”
“I thank the Member for that. I agree with her: we all need to do it better. Every Department needs to do it better, because the world is getting worse out there. The digital age is making it worse, but, physically, it is getting worse for our children. I have not been reassured yet that anything that we have in place through social services can make a profound difference to what we are trying to achieve here. I believe that you would create a chasm by moving the age of criminal responsibility. <BR /> <BR />The Youth Justice Agency does a tremendous job, but it cannot do it all.”
“That is a massive issue. By taking out the criminal justice element, I fear that we will be putting that care system in place for more children at different ages. <BR /> <BR />I will give way to the Member.”
“I thank the Member for her intervention. Why is that not being done already? Why is our healthcare system not aligned with that? Why are social services not aligned with that? The Member is quite right about kids in care. However, what is being proposed here will put more children into the social services network. We all sit in here and have lovely debates and say robust things to one another, but there is a dark, evil world out there. Our children are really vulnerable. Some of them experience things on a daily basis that we can only imagine and cannot yet comprehend. Children in care are more susceptible and more vulnerable than anyone else.”
“We would need assurance, and the Minister would need to give assurance to everyone out there —.”
“I thank the Minister for her intervention. None of that is in the text of any of the amendments, however.”
“That is really important. We have all got to the point of thinking that something should change, but no Member who is here tonight has told me what needs to be put in place. We have talked about a framework, which the Minister mentioned. The Member who proposed the amendment talked about a framework being in place, but no one has yet given us the detail of what it would look like and what outcomes it would achieve.”
“<BR /> <BR />That raises a fundamental issue with our court system. I do not want to see any young person have to go to court for any crime that they have committed, but one of the facets of justice is, and has to be, accountability. Professor Kevin Brown wrote to me and has published a platform piece in 'Irish Legal News'. I state categorically that Professor Brown thinks that the minimum age of criminal responsibility should be raised. He is, however, really worried about the list system and the complication that it would bring, especially for sexual offences. I will read an extract from his platform piece, because I agree exactly with what he wrote:”
“I thank the Member for her intervention. If it is about prevention, why are we not doing it better already? Why have you turned this around so that it is the victim of the activity who needs to do something in order to stop it? That is wrong-headed and not where we should be. Saying, "Worried about upskirting? Just wear trousers" is a bad place in which to be, and we should not go there. We should afford our schoolchildren the safety to wear a skirt if they feel like it, without their fearing being upskirted in any way, shape or fashion. What we are saying, however, is that, under the amendment, a 13- or 14-year-old who engages in that activity will not be found guilty of an offence. That would do violence to all the work that we have been doing over the past number of years.”
“I thank the Member for his intervention. That is why I am really worried about starting a list system with a list of only five offences, as serious as they are. A child under the age of 16 would not be able to be found guilty of an offence of cruelty to someone under the age of 16. Neither burglary nor aggravated burglary is on the list. Destroying or damaging property is not on the list. What have we lived through in the past week? <BR /> <BR />When it comes to indecent photographs of children, we have gone through the matters of upskirting and downblousing in the House. The Minister pushed that stuff through, and very welcome it was. We supported her with all that, but what we are now saying to a child is this: if you commit that activity, you cannot be found guilty of an offence.”
“Shooting or attempting to shoot or wounding with intent to commit GBH are not on the list. Inflicting bodily injury with or without a weapon is not on the list, nor is attempting to choke in order to commit an indictable offence. We have been through that before in the Chamber regarding non-fatal strangulation. What message are we now going to send to young people in saying that, if you do that activity at 12, 13 or 14 years old, you are not committing an offence?”
“<BR /> <BR />Is it about recognising serious harm? If it is, what about the threat to kill? Is it about managing risk? How is listing only five managing risk for the victim of an activity or for the perpetrator because we are not yet sure whether it is a crime? Will it address public concerns in exceptional cases? The proposer of the amendments and the mover of the debate has said that the numbers are limited. They are minute in the wider scheme of things, so why are we going down the road of lists? That is a serious problem because there is a fundamental issue in the courts system, which has been highlighted to me. <BR /> <BR />First, let me address some of the serious issues that should be on that list. Conspiring or soliciting to commit murder is not on the list. Threats to kill is not on the list.”
“I really worry, therefore, about the list and the road on which we are travelling. <BR /> <BR />At the minute, the status quo is 10 years old. We all know that. The criminal justice system, the police, the PPS and the courts know that, but how do we go about doing lists? What do we leave off and what do we include? What are the lists for? What are they trying to achieve? Is it about recognising serious harm? Sian alluded to it being about public confidence, and I understand that, because she has been honest, and I thank her for that. If it is about public confidence, however, we have a big issue with everything to do with the criminal justice system, because a lot of people do not have confidence in the justice system, and that is regrettable. Going down this road will add to that lack of confidence.”
“If a child cannot be found guilty of a sexual crime, does that mean that it is sexual activity because it cannot be a crime if the person perpetrating it cannot commit the crime, cannot be the perpetrator of crime or cannot be guilty of crime? Are we saying that sexual crime for a 12- or 13-year-old, or even, in the first amendment, for a 10- or 11-year-old, is not crime? That is what we are talking about. So what does it become, and how do we get outcomes and justice in that scenario? How do we get a decent outcome for the victim and a decent outcome for the perpetrator? Justice is not just about throwing somebody in prison or punishing people. As a libertarian, I believe that justice works both ways: you get rewarded for doing something good but punished for doing something bad.”
“Let us look at some issues that we have been dealing with over recent years and at what young people have been doing. I have no doubt that, when it comes to young people's behaviour, violence is a big thing; violence against other children is a big thing. As they get older and come into puberty, sexual activity and, I am afraid, sexual crime come into play.”
“<BR /> <BR />I also worry that we are complicating what is already a very complicated system. We have a criminal justice system that includes the Youth Justice Agency, youth courts, criminal justice and so on — we know that going into a court is scary for an adult; I have been there — but we complicate it even further when we add caveats for serious crimes for which a 10-year-old, or a 12- or 13-year-old, can be convicted, namely murder, attempted murder, manslaughter, rape or assault by penetration. That will have a grave impact on all the law enforcement agencies, including the PSNI.”
“Paragraph 3 mentions murder, attempted murder, manslaughter, rape and assault by penetration. One offence that is missing from her lead amendment — amendment No 79 — is attempted murder. Where is the science or evidence around the lists of very serious crimes that could be committed? <BR /> <BR />Sian talked about science and brain development. I get that. I know that we all develop at different stages — I do not know what I am going to be when I grow up. In all seriousness, if it is about scientific research and evidence around brain development, how could anybody aged 10 be found guilty of murder, manslaughter, rape, assault by penetration or attempted murder? In many ways, if you put so much store on the developmental attitudes of young people, it defeats your own argument, and I really worry about that.”
“A cross-party amendment — amendment No 82 — proposes to change the age of criminal responsibility to 12, but it is flipped over, in that no 12- or 13-year-old:”
“I thank the Member for that clarification. With that compromise and, let's face it, a political negotiation, science and evidence have gone out the window. What you have done is that you have tried to get to a common denominator for which you can get the biggest support in the House. We are talking about law and order and the age of criminal responsibility. We are talking about victims. We are talking about children. We are talking about crimes. That is really important, as is the debate. One thing is for sure: whatever happens tonight, it has been useful to have the debate. However, if it ends in changing the law on this issue, I fear for where we will end up and where our young people will end up. <BR /> <BR />Sian's amendment No 79 proposes to make the age of criminal responsibility 14. However, she caveats that by including:”
“I will simply say this: if the evidence is sound, why have we so many amendments giving different ages for the age of criminal responsibility? I say this respectfully, as she knows I will: the proposer of the amendments has changed her mind on two of her amendments.”
“However, the Committee did not form a view or take a position on the matter. <BR /> <BR />I will now speak as justice spokesperson for the DUP and as a private MLA. I have heard passion in here today from the proposer of the amendment. I cannot fault Sian one bit for that passion, and I respect that. When you listen to her terminology and the passion in her speech, you can hear that she is really bedded into this world with regard to her passion and her work previous to being a Member of the House. I respect that 100%, but I fear that what we are doing here is changing one aspect — the minimum age of criminal responsibility — before we have anything else in place to ensure that victims are protected and young people do not become exploited. <BR /> <BR />Sian talked about evidence that she has read and that others have produced.”
“The British Association of Social Workers, the Bar of Northern Ireland, the Probation Board, Victim Support, Northern Ireland Alternatives, Community Restorative Justice Ireland and the Youth Assembly all suggested that the age should be raised to 14. Others, including the Children's Law Centre, Children in Northern Ireland, the Northern Ireland Commissioner for Children and Young People, VOYPIC and Include Youth, suggested that it should instead be 16. MACR was also raised during our informal round-table discussions with young people. There was no agreed age, with a range of 13 to 16 suggested by participants, although there was a general view that 10 is too young. The Committee noted the range of views on the issue and the fact that several amendments had been tabled to raise the minimum age of criminal responsibility.”
“I think that the Speaker's Office has learned lessons from last week, when it gave me a break during my speech to help me to get back on my feet again. You have learned that lesson and not given me that privilege this week, so I start my speech straight after the break. I will speak first as Chairperson of the Justice Committee, and then I will make comments as justice spokesperson for the DUP and as an individual and private MLA. <BR /> <BR />Whilst provisions to increase the minimum age of criminal responsibility were not included in the Bill, it was an issue that multiple respondents raised during Committee Stage. There were differences of opinion on what the MACR should be.”
“I thank the Member for giving way. She is passionate about the subject, and listening to her has been informative. However, even in her amendment, she maintains:”
“Is the Member suggesting that they be deprived of that safe place?”
“I thank the Member for giving way again. Should it not then be the criminal justice system that gets better? We already treat youngsters and children in our justice system differently from adults. Would it not be better for our criminal justice system to embrace all that the Member has talked about in the past 10 minutes in order to support children in that system?”
“I thank the Member for giving way. She raises really valid social issues that we have not yet got to grips with but that we should — we should do a lot better. However, how can she align all the ills and dysfunction in Departments in this regard, and Departments not working together to support children and families, with the criminal age of responsibility? Is it not the case that most of those children will have come into contact with social services before they come to the attention of the law?”
“I thank the Member for giving way. She and I have been through this over the past number of weeks, reciting our arguments. It has been very respectful, and it will remain that way in the Chamber today. The Member says that children are being exploited already. Does she not accept that if we change the age of criminal responsibility from 10 to 14, a 14-year-old is much more mobile and could be more in the grasp of criminal gangs than a 10-year-old? Does she accept that the change will incentivise the criminal gangs to exploit that cohort of youngsters whom they control much more and incentivise them to carry out further criminal acts because they cannot be prosecuted?”
“I ask its Members to think carefully over the next couple of hours.”
“I ask the other Members to my left and those who are listening in their offices to please sign the petition of concern. Go along with your party policy and ensure that we do not see a change in the law today that will be detrimental to our people, to the victims of crime and to young people out there who may be targeted by criminal gangs. <BR /> <BR />We do not use the petition of concern lightly, nor should you, but nor should UUP Members use it as a wedge against their leader. I ask the UUP to put its dysfunction to one side and sign the petition of concern, which is consistent with its party policy. Let us ensure that we retain the age at 10. If that is changed in the Justice Bill today, I will blame the Alliance Party, the SDLP and Sinn Féin, but the public should know that it happened because of the dysfunction of the UUP.”
“Last week, as was her right, Sian Mulholland raised in her Member's statement the issue of using petitions of concern. As is our right, we have tabled a petition of concern on something that we feel very concerned about. Like the DUP, the Ulster Unionist Party states how important justice and the rule of law are, and its party policy is that the age of criminal responsibility should stay at 10. Its leader, Jon Burrows, claims that a change in that age would be dangerous, and we agree with him. He and his deputy leader, Diana Armstrong, have signed the petition of concern, and I thank them for that, as I thank our colleague from North Antrim Timothy Gaston who has signed it also. However, Jon is either the leader of the UUP or he is not.”
“I think that that is what she referred to. That is the only place in the amendment where I could see the phrase "reasonable excuse". That is a read-across from the existing article 17CA on "Breath testing at authorised check-points". It has been read across in order to be thorough. I hope that I have been able to answer and address the questions that were posed to me. <BR /> <BR />I will not go through a full winding-up speech, because it would not be fair on the House. We have been here for a long time. We have had a very good debate. I thank every Member who contributed and who will vote for the three amendments. Thank you.”