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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“<BR /> <BR />Amendment Nos 53 to 64, which propose new clauses, and amendment No 125, which proposes a new schedule, are ministerial amendments to the provisions on live links for courts and tribunals. As I said in the debate on the first group of amendments, before the introduction of the Bill, the Committee was advised of the Minister's intention to make primary legislative provision for the use of live links in courts and tribunals by way of amendment at Consideration Stage. Throughout the past few years, the Committee has considered a series of sequential statutory rules that extended the use of live links in courts and tribunals using coronavirus legislation. As the House will, no doubt, be aware, to date, there have been nine such extensions for six months at a time.”
“As I have said, throughout its taking evidence, the Committee heard of the need to ensure that appropriate safeguards are in place, so that aspect of the review is essential. <BR /> <BR />The amendment also specifies the bodies that must be consulted during the review. Those are the Courts and Tribunals Service, the PSNI, the Human Rights Commission, the Children's Commissioner, the Law Society and any other body or person that the Department considers appropriate. The report on the review must be laid before the Assembly. We will therefore be able to scrutinise it to make sure that live links are operating effectively or to see where things need to be improved. I therefore trust that Members will support amendment No 65.”
“<BR /> <BR />The Committee agreed on 12 March to introduce a review clause after clause 21 to report on whether and to what extent the use of live links in police custody has been effective. As suggested, the amendment allows the Department to appoint a suitable person or body to carry out the review. The review period is three years after the provisions come into operation, which should be sufficient time to see how live links are operating. The review will include quantitative data on the number of directions for participation in proceedings by different courts and tribunals and will also require an assessment of the extent to which the rights of persons participating in proceedings have been safeguarded.”
“We therefore asked whether the Minister would be content to bring forward such an amendment, providing her with a draft that had been prepared for the Committee by the Bill Clerk. In response, the Department advised that the Minister recognised that there may be benefits in having such a review mechanism but that the police have their own internal governance and monitoring arrangements. It also advised that the Minister would not bring forward an amendment but asked that, if the Committee were to bring forward such an amendment, it would include a requirement for the Department to appoint a suitable person to carry out a review rather than tasking the Department to carry out the review itself.”
“In response to the assertion that monitoring will be required, the Department stated that it did not have a mechanism to monitor the use of live links and that their use in police custody settings would be a matter for the PSNI and would be subject to the normal monitoring arrangements of the Northern Ireland Policing Board (NIPB), Criminal Justice Inspection Northern Ireland (CJINI) and His Majesty's Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS). <BR /> <BR />During our deliberations on the Bill, Committee members indicated that they were content with the live links provisions but believed that their use should be monitored and evaluated in order to ensure that the concerns raised in the evidence that we had received did not materialise.”
“In response to those concerns, the Department stated that it did not expect the situation to become one of "live links by default" and that the provisions would not serve as a replacement for in-person attendance. <BR /> <BR />The Department also pointed to proposed new article 46ZB, which includes a mandatory requirement to ensure that the use of the live link interview is not contrary to the interests of justice, the test for which, the Department stated:”
“Active consideration must therefore be given to providing the necessary accommodations for those with speech, language and communication needs. The need to ensure remote participants' access to information, guidance and other relevant documentation was also highlighted as being essential to ensuring that equal access to justice is maintained. <BR /> <BR />Evidence that the Committee received suggested that monitoring should be put in place to ensure that use of live links does not become the default approach and that live links are not used inappropriately. Such monitoring is also needed to ensure that the rights of all those involved are safeguarded and that live links are operated in the best interests of justice.”
“We repeatedly cautioned against the need to ensure that the use of remote videoconferencing did not become "live links by default". The need was highlighted for appropriate protections and safeguards in the use of live links, particularly for children and vulnerable people, to ensure that those involved can fully understand, consent to and participate in proceedings. <BR /> <BR />Children's groups advised that a balance must be struck between children's rights and the access to justice test. Children must be supported to make informed choices and to participate meaningfully in proceedings by the most appropriate method. <BR /> <BR />The Royal College of Speech and Language Therapists (RCSLT) advised that the use of a video link may cause additional barriers for some.”
“I will now speak to the Committee's amendment No 52, which is on the review of the use of live links. The measures in the Bill provide for the use of remote video interviewing by police and for the extension of the period of pre-charge detention. The Committee considers that there are benefits to be gained by the use of live links for those purposes, such as access to justice and improved efficiency in the justice system. The Committee therefore supports the placing of those measures on the statute book. <BR /> <BR />That does not mean, however, that concerns or issues were not raised about the live links provisions in the Bill and the planned ministerial amendments. The Committee heard that live links must not disadvantage victims, witnesses or defendants and must not result in rights being diminished.”
“Although the Minister did not intend to table amendments herself, she advised that she would not be opposed to the Committee's amendments. The Committee therefore tabled amendments Nos 41, 42 and 43 to insert ", vulnerabilities" after "maturity" in clauses 4, 5 and 6. I hope that the House will support those small but important amendments.”
“The Committee asked whether the Minister would be prepared to table amendments to that effect to the relevant clauses in Part 2. In response, the Department stated:”
“<BR /> <BR />In our deliberations on the evidence received, we wrote to the Department requesting views on adding vulnerabilities to the matters to which the police and the courts must have regard when making decisions on bail and custody for young people.”
“In oral and written evidence to the Committee, respondents suggested that the matters that the police and courts must have regard to should include reference to the vulnerabilities of the child or young person. <BR /> <BR />The Committee explored the proposal further during oral evidence with Include Youth, and members heard that youth organisations see increased complexity of need from young people that could include mental health issues, drug and alcohol issues or a history of abuse, trauma or neglect. Therefore, whilst acknowledging that age, maturity and needs are required to be considered, Include Youth felt that looking at a young person's vulnerabilities could be important in capturing some of those things.”
“I welcome the chance to introduce this group of amendments. I will begin to speak as Chair of the Committee, and then I will speak to my amendments and make some remarks on the group in a personal capacity. <BR /> <BR />I turn to Committee amendments Nos 41, 42 and 43. During consideration of Part 2 of the Bill, the Committee heard from several organisations about the need to strengthen the considerations that the police and courts must have regard to when making decisions about a child's bail or remand. Clauses 4, 5 and 6 require the police and the courts to have regard to the juvenile's age, maturity and needs when making a determination about the release of a child on bail, the imposition of conditions for bail or whether the young person should be remanded in custody.”
“I thank the Minister for giving way. The Minister raises an important point that alludes to what I said earlier. The Department and the Minister have adopted that model and plumped for it, rightly or wrongly. She and I have said that there are no gold standards and no system perfect. She is right in what she says about Members starting to cherry-pick that structure. I looked at it and struggled to see where I could make changes to convince myself that that would improve the balance between human rights and the enforcement of law.”
“I thank the Member for giving way. Before he stops, can he clarify whether, when he talks about a case-by-case basis, he means certain crimes, such as murder compared with manslaughter, or, say, two people have been murdered as opposed to one person? How many culprits are involved? Can he explain what he would use as a measuring tool when designing a case-by-case model for the retention of biometrics?”
“I thank the Member for giving way. Lest there be any misunderstanding, the reason that the Minister is bringing a Bill to put a structure in place for biometrics is the same reason that we, in the Committee, feel that it would be right to have a framework in place so that we can all judge, look at, see and understand issues related to photographs, too. If you like, the Committee is trying to include photographs in that biometrics framework so that you and everyone else, including the public, will know exactly how long images will be in the system before they are destroyed. That is really important, especially in the context, as the Member spoke about, of technical and digital advancement when it comes to photographs and images.”
“I thank the Member for giving way because it is a very important issue. The Member states clearly that 75 years is a long time: so it is. However, if he does not like the 75/50/25 model and wants a case-by-case basis, how would that stand up to a challenge? How could a framework be put in place on a case-by-case basis?”
“I thank the Member for giving way. What might be helpful for the debate is if the Minister could give examples of extreme or exceptional circumstances in which the data would be held after the person is deemed to be innocent.”
“The Committee thinks so, as does my party. <BR /> <BR />I ask the House to approve the Committee's amendments and ask the Minister to take them to her heart and commence them as soon as possible.”
“Thank you for that, Minister. That is basically where I am with Gerry Carroll's amendment. I am grateful for the clarification from the Minister. <BR /> <BR />I do not want to take up any more of the Assembly's time, other than to plead with Members to consider the Committee's amendments in the group. They are sensible and reasonable, are human rights-compliant and add protections for people. I worry about the need to future-proof the Bill and make sure that we can somehow encapsulate photographs, which will come into play later in our lives, given the use of facial recognition and other technologies that the state will use to detect people of interest. At that point, we should worry about what data the state holds and what it does not hold and about how images should be retained and destroyed. Photographs are an important consideration.”
“I really understand the checks and balances that Gerry Carroll is trying to create. I would like a lot of that good stuff included somewhere, but my question is this: should the amendment be in the Bill or in the operational PACE codes? I will reserve judgement until we hear from the Minister or from anybody who can provide clarification on that. The Member will speak to his amendment, so maybe he can clarify that.”
“I worry, however, about whether it should be in the Bill or in the PACE codes. I do not know the answer to that. Maybe the Minister does. She may give us some information on that in her winding-up speech.”
“<BR /> <BR />I understand Gerry Carroll's amendment and why he has tabled it, because it reflects exactly some of the views that I have.”
“<BR /> <BR />Another issue with Sinn Féin's amendments, although its Members can speak to them and we will make a judgement based on that, is the fact that they seem to have stripped away any control that the PSNI has other than actually holding the data. They would mean that the PSNI would not have any sort of control over appeals or assessments. Sinn Féin does not even want the PSNI about the place when it comes to assessing such things. The PSNI, which is there to keep us safe, to investigate and solve crime and to be the holder of that material, should have a part to play — it must have a part to play. I worry about how Sinn Féin's amendments would alter the structure that the Justice Minister has created.”
“I will listen intently to the contributions from Sinn Féin Members to establish whether it means anything other than that, but it seems to me that Sinn Féin has struck out everything at five years, three years and two years. Of course, one of its amendments also does away with the penalty notice. <BR /> <BR />Why would we not retain DNA for someone who has been convicted of indecent behaviour such as shoplifting, criminal damage, being drunk in a public place, disorderly behaviour or behaviour that is likely to cause a breach of the peace, and where it is alleged that the accused resisted, obstructed or impeded a police officer? Why would we not retain that DNA, even if for only a small period of time? That probably makes a mockery of the police requiring people to come to the police station to have their biometric data taken.”
“<BR /> <BR />If I have read that correctly, it means that, if someone under 18 is convicted of a qualifying offence — we must remember that that includes some of the most serious offences on the statute book — their data will be able to be retained for only seven years at most. I may be wrong in that, so I will certainly listen attentively when they speak to the amendments. Where P is convicted of a recordable offence other than a qualifying offence, and if P is aged 18 or over and is given a custodial sentence, their data can be retained for 50 years. If I am right, we can therefore see the difference between the 75 years for a qualifying offence, the 50 years for a recordable offence and the 25 years where P is convicted of a recordable offence but not given a custodial sentence.”
“<BR /> <BR />From what I see, if I have got this right, Sinn Féin is trying to say that, where P is over 18 and is convicted of a qualifying offence, or where P has completed the community-based restorative justice piece and the offence is a qualifying offence, P's material would still be retained for 75 years. As I see it, Sinn Féin's amendments would make a difference in cases where P is under 18 and convicted of a qualifying offence, or where P is convicted of a recordable offence and a non-qualifying offence — because there are differences in offences. They would mean that, in such cases, P's data would be retained for only three years, unless the Chief Constable applies for an extension for a further two years and a further two years after that.”
“I thank the Minister for that intervention. I feel like I am an intermediary between Sinn Féin and the Minister. <BR /> <BR />I will make progress and talk to Sinn Féin's amendments. It is for Sinn Féin to try to sell its amendments to the House, and I will listen attentively when its Members speak to those amendments. It is really hard to look at what the amendments would omit from the Bill and to try to work out the structure of the Bill alongside the structure of the biometrics framework and to then try to work out what Sinn Féin is actually trying to achieve. Sinn Féin will have time to talk about that, so I do not need to take an intervention on it.”
“We have to strike a balance in giving the police the powers to solve crime and bring criminals and perpetrators to justice. That is the balance that we have to strike. That is what we are debating and arguing about on Part 1. Somewhere along the line, we must fall down on what the structures should be. That is why it is important that the Department has the structure in place and that it is contained in the Bill. The Department has changed it in many ways, but that is where it has fallen down and what it has agreed.”
“There are two issues. The first is choice. Not travelling is not really a choice for someone. That is like saying that it is your choice whether or not you want to work or that it is your choice whether or not you want to go to a pub or restaurant. That is why I am totally opposed to data being used in that way. <BR /> <BR />The other point is about human rights. If someone commits a crime, we have to allow for a diminishing of their rights, such as the right to freedom if they get a custodial sentence and are incarcerated. There are qualifying aspects to all human rights, and this is just one part. This is a really in-depth, good debate on these serious matters. It is right for us to have this debate, because we are trying to be human rights-compliant, and that is the most important thing.”
“I do not like that, nor am I comfortable with it, but that is the state of play. I will give way to the Member.”
“Thank you, Madam Principal Deputy Speaker. <BR /> <BR />Emma Sheerin raised an important point about data collection and innocence. The question of innocence should come into it. That is why this structure must have safeguards whereby you can appeal in order to have such data removed. I say to the Member that we now live in an age where, if you want to travel to other countries, you must go to the airport and put the palm of your hand on an electronic pad in order to align that with the photograph on your passport.”
“I thank the Member for his contribution, as I thank the Minister and Gerry Carroll for their interventions. This is a really serious topic, so we need to take it very seriously, but, in the first instance, it is about our trying to be human rights-compliant. That is our base — it is what we are trying to do; it is the motive behind the Bill, and it is really important. Whilst the Coronavirus Act is in the Bill, and we could and should talk about it in relation to live links, the issue with the Coronavirus Act is that what it did to our people was awful. The stigma and harm caused by the use of the regulations will be with us for decades. That includes our children who will not and cannot now go to school — all of that.”
“The Member is right with regard to my concerns about what the Coronavirus Act did to our people. I am totally and utterly opposed to digital ID, but I am opposed to those measures because of how our data would and could be used, not necessarily because of the retention of the data. We have been getting fingerprints for ages: when the police have investigated crime and arrested someone, they have always taken fingerprints. DNA or biometrics is that, but it is being retained by the PSNI. You could argue, "That's the state", but it is about how that data is used. If the Minister were to come here with a structure that meant that anybody who is in the PSNI database could not go to concerts, obtain everyday living accommodation, get a job, travel or have all the freedoms that we enjoy, I would have a problem, and I would be right to do so.”
“I thank the Minister for that important intervention. I hope that that goes some way to clarify the matter for the Members opposite, and to assuage their concerns. <BR /> <BR />We are in an age when, if you travel —.”
“I thank the Member for her contribution, because she raises valid points. However, the fact that the PSNI retains a person's biometric data is not a presumption of that person's guilt. There will be data from innocent people in storage, so there should be no —.”
“It is important that these things are reviewed to ensure that they are fit for purpose and that they afford people justice and protection and are human rights-compliant, which is the whole point of the Bill.”
“I do have concerns around all of that. We took evidence on that. However, it is for the Minister to answer on her structure and her operation of her structure and the Bill that she has produced. This is not perfect. There are areas of concern, but the challenge — I will come to Sinn Féin's amendments soon — is how to produce something that is similar or better than that which the Department has produced and that, in communication with the PSNI, strikes the balance between human rights compliance and the detection, investigation and solving of crime? There is a balance there. It will not be a perfect balance. We will not get it right. The Minister and Department will not get it right. However, we have a framework in place that we have to go with. There is no other show in town.”
“We could all pick holes in it, and we could all come up with our own ideas on biometric retention. However, when the Minister and the Department have decided on a structure, we have to assess it and scrutinise it. When we come down one way or the other, we have to say, "this that is the way it is going to be."”
“Where someone has not been convicted of a crime, they are innocent, but there are parts of the structure that allow for retention of their DNA. When you think about that and about how a court case works, you see that, sometimes, people can get off on technicalities or because there has been a flawed investigative process. Sometimes, people can get off because they have not been asked the right questions at the right time in custody. Therefore, I believe that it is appropriate that DNA be retained for a time, even in such cases. It builds up a knowledge and intelligence base for the PSNI to investigate crime further and in other parts of the country where you might have a single culprit. <BR /> <BR />I think that the Minister's structure is a sound one.”
“The Justice Minister has produced a structure. You could come up with all sorts of structures, and I will come to that in a minute. The Minister settled on the structure that she has agreed, and her Department is comfortable with that structure. For the Assembly to mess about with that too much at this point could put Part 1 of the Bill in jeopardy and could tie the hands of the PSNI and all the other criminal justice organisations in investigating crime, solving crime and putting culprits behind bars. We need to make sure that they have all the information that they require on anyone who has breached the law. <BR /> <BR />Where I do have an issue is where someone has not been convicted of a crime, and I will explain why.”
“Yes, I do. I thank the Member for his intervention. I do have concerns about that, but if crime has been committed, no matter how light-touch it may seem to some Members, I do think that the sliding scale appreciates and acknowledges that. I think that it is right that the Chief Constable, who is the holder of the data and who is tasked with investigating and solving crime, has the tools and the flexibility to apply to have the retention of DNA material extended. There will need to be good cause for the Chief Constable to apply for retention of that data beyond the scope of this structure. If there is good cause and that is coming from the Chief Constable, it is right and proper that it will be attested to and assessed, with a decision then taken on that. <BR /> <BR />Of course, there is a court process involved too.”
“If P is guilty of a penalty notice under section 60 of the Justice Act 2011, those are quite serious offences, so the DNA and biometric materials can be retained for two years. As the Minister outlined, there are times when the Chief Constable can apply to have the biometric materials kept for longer.”
“their material will be held for two years. When I first read that, I thought, "A penalty notice? Really? We are getting DNA collected for penalty notices?". As the Minister has pointed out, however, it is not a penalty notice such as that for a driving offence. It is not that type of penalty notice. Rather, it falls under section 60 of the Justice Act, which, as the Minister recited, includes indecent behaviour, shoplifting, theft and criminal damage. I think that being drunk in a public place is in there as well, although the Minister did not include that in her list. The Minister also said that section 60 includes disorderly behaviour, behaviour likely to cause a breach of the peace and behaviour where it is alleged that the accused resisted, obstructed or impeded a constable.”
“their material will be retained for three years. Sometimes, those lower years are more controversial. If P is charged with a recordable offence, their material will be held for 12 months. <BR /> <BR />Proposed new article 63Q states:”
“That is very complicated, but I understand the logic. That article also states that P's material will be held for five years if P is under 18 and is convicted of a recordable offence that is their first offence. I can understand why we are doing that for first offences. People, especially young people, sometimes make mistakes, and they have to pay for those mistakes. Justice must be seen to be done. Victims need justice to be served, but there is that exemption for first offences. I like that idea. <BR /> <BR />Proposed new article 63G states:”
“and the offence is their first offence, and if P is under 18, their:”
“Proposed new article 63M refers to P's being aged under 18 at the time of the offence, their not being given a custodial sentence of five years or more, their having completed the combined restorative justice process and the offence not being recordable. We can therefore see how the structure cascades and how the years drop. Proposed new article 63M(5) states:”
“The Minister has raised a very important point. The appeals structure should not be just one way but both ways. If someone has their data retained, and they or their family feel that they should not have it retained, there should be procedures in place whereby the PSNI can scrutinise that decision and process it. As the Minister rightly said, the PSNI retains and controls that data, but the individual involved will be able to appeal to the independent commissioner. <BR /> <BR />Proposed new article 63K also states that, where P is convicted of a recordable offence but is not given a custodial sentence, their material will be held for 25 years.”