Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Amanda Patterson, Steven McCourt, Martine McKillop and Deputy Chief Superintendent George Clarke. Folks, when you are ready, please make some comments, and we will open it up for questions once you have concluded.

Ms Amanda Patterson (Department of Justice): Do you want to start with the child protection amendments?

The Chairperson (Mr Ross): Yes, that is fine.

Ms Patterson: I am not sure how much you want me to go over where we are with those or whether they are clear enough. The provision that is now in the Bill will require the Department to add to the guidance for public protection arrangements some specific requirement to enable members of the public to make an application for disclosure in the case of someone who has access to a particular child or children and where they have some evidence of concerns. It will then be over to the agencies, in particular the police, to decide whether there is a need to protect that child and whether that must be fulfilled by the disclosure of conviction data in relation to any sex offence or certain categories of violent offence committed by the person. The details and arrangements for and the administration of the scheme will be produced as part of the guidance under the public protection arrangements. That is a statutory document under article 50 of the Criminal Justice Order 2008. The arrangements will be developed in consultation with the relevant agencies, as is statutorily required. It is another statutory requirement that those agencies give effect to the arrangements in the guidance.

The amendments that the Department is putting forward for Further Consideration Stage will not change the policy outcome in any shape or form, which is the overview that I just gave you. They are purely amendments that we have been advised by legislative counsel would make the clause fit within the existing legislative framework in a better way and that would offer a better approach. The amendments will offer a definition of "child" and "relevant conviction" and will change the wording from "offender" to "person" because that is the definition used in the current legislative cover and the guidance. Nothing of a substantive nature will be involved in any of the amendments that are proposed for Further Consideration Stage.

I am happy to take any questions that you might have.

The Chairperson (Mr Ross): Paul will probably take an interest in this, as he brought the issue forward.

On confidentiality, the main difference is a shift in the law — Paul will correct me if I am wrong in the intention of it — in that there is now an opportunity for people to proactively ask for that information, as opposed to new information being made available to them. During Consideration Stage, a number of Members mentioned concerns, particularly on Megan's law. I know that we are much tighter than we were on the original Megan's law, but there is concern about the need for confidentiality in the disclosure of information and ensuring that an individual does not misuse it. Is there anything on that that you are proposing to ensure that there is not a misuse of information or that there is not perhaps an encouragement for people to go out and hunt down individuals in some sort of vigilante gang?

Ms Patterson: We suggest that the clause does not require anything in particular. Arrangements under the current public protection arrangements Northern Ireland (PPANI) guidance are quite clear about the need for confidentiality when a disclosure is being considered. We will be looking at that to see whether there is any strengthening of how the scheme might operate. We see the use of generic offences already in existence under the Data Protection Act, etc, as the legal way of trying to ensure that people do not pass that on unlawfully.

Mr Frew: Thank you very much for your work. I thank you in particular, Amanda, for the work that you have done with me over the last number of weeks on the amendment. I am very grateful for it. It is an example of how individual MLAs can work with officials in various Departments to get something through successfully. Thank you very much for all your time and effort on that. I really appreciate it.

I have one query, and I am only asking for reassurance, but not because I think there is something wrong with the wording. It is about the definition of "relevant to previous conviction", because in the amendment that I put forward it had "convictions, findings and cautions". I am hoping that that is still in that definition. It reads:

I hope that that paragraph actually covers those three aspects.

Ms Patterson: It will also cover findings and cautions.

Mr Frew: Of course, while we do not want to delve into somebody's personal life too much, if there are findings or cautions that would concern PPANI agencies, I believe that the public who enquire and who have the right to know deserve that information. Not all offenders are convicted, I suppose, and there may well be a small percentage where a caution has been given but not a conviction.

Ms Patterson: Yes, that is right. Cautions will be covered, as will findings, although those are findings of the court in criminal proceedings. They will all be covered for the sexual and violent offences that are, at the present time, in the PPANI arrangements.

Mr Frew: I am happy enough. I do not need to prolong the meeting any further, other than to thank all the staff again.

Mr McCartney: I have just one question. A person cannot disclose the information that they are provided. Does it also prohibit them from saying that they have applied for the information?

Ms Patterson: No, not at the minute. Those are the sorts of details that we still have to look at very closely when we are working out the scheme and the guidance that the agencies, and the police especially, will wish to look at and contribute to.

Mr McCartney: You will not need it in the Bill.

Ms Patterson: No.

Mr McCartney: I ask because you can see a circumstance where, if someone was malicious, they could say that they had applied to find out whether person A has convictions. That can create suspicion and doubt. That needs to be covered, so the confidentiality should begin and then carry on throughout the process. That is fine.

Mr Dickson: To what extent are there arrangements for those people for whom the disclosure is against to be advised that it has been given about them? Are they made aware now, or would they be likely to be made aware of those individuals?

Ms Patterson: At present, under the disclosure arrangements in the PPANI guidance, that particular subject is addressed. At the minute, where disclosure is not going to cause a risk of harm to the child or children, the person would be informed. Indeed — I am sure George will back me up here — if it is possible to arrange that the disclosure will be given by the person themselves to the individual, that is usually considered the better way of doing it.

I talked about having to look at the detail of how the scheme will work, and that is another of the issues that I think we will want to look at closely to see how we will do it. I know that in England and Wales, for example, the courts decreed that, where information is being disclosed, the person should be made aware of that and should be given the right to make some sort of representation if there were concerns. That is another area that we will want to look at. However, that is for the guidance. In England and Wales it was in the guidance for the scheme, and we will want to look at it here as well.

Mr Dickson: That is helpful. Thank you.

Mr Frew: Again, if I could interject, I suppose what I have learnt over the last weeks and months is that every case will be completely different and will have to be looked at case by case. There may be an enhanced risk if disclosure is made to the offender or, if it is not, the case might be otherwise.

That is why I set so much store by the article 50 guidance and the specialists, experts and agencies that are involved in PPANI at present. I am 100% confident that they should manage the disclosure scheme.

The Chairperson (Mr Ross): George, from a policing point of view, is this something that you welcome? I do not want a foray into politics, but would it be helpful in your role? Are there any areas that you are concerned about that might need to be tightened up to make sure that this sort of scheme is not abused?

Mr George Clarke (Police Service of Northern Ireland): There is potential for any scheme that involves the disclosure of information to be abused. What one has to do is balance the requirements of keeping children safe, which is what the amendment seeks to do. You signposted very well that I am not going to make a foray into politics, but I will say — I miss no opportunity to say this in wide audiences — that we always need to remember that many of the people who pose significant risks to our children are not known. They are not convicted offenders. We also need to remember and realise that many of the people who pose the most egregious risks to our children are members of their family who are known to them. I know that the member considered that in detail when drawing this up with officials, but we need to be conscious that disclosure will not automatically identify many of the people who pose a risk to our children. As a rider to that, I recommend to all parents and to anyone who can advise parents that absence of conviction does not always make a person safe and fit to be trusted with access to your child. There needs to be considerable work done by parents and the agencies that support them to help keep children safer in a range of environments.

The Chairperson (Mr Ross): That is a point that nearly everybody made at Consideration Stage. Sarah's law and Clare's law on their own will not increase protection for children or women, but they may play a part in it. The lack of conviction does not mean that there is not a risk, and that probably provides us with a good way to segue into the domestic violence issues where there have been concerns. Unless members have any other issues on this issue, we might move on to the domestic violence issues.

Mr Steven McCourt (Department of Justice): Chair, if I may, I will just set out the position that the Minister has agreed on Clare's law. Clare's law introduces a framework to enable the police to disclose to the public information about previous violent offending by a new or existing partner. That may help to protect them from further violent offending. We believe that the objectives of the disclosure policies, which were set out for England and Wales, equally apply to Northern Ireland. They were to strengthen the ability of the police and other multi-agency partnerships to provide appropriate protection and support to victims at risk of domestic violence and abuse; to reduce the incidence of domestic violence and abuse; and to reduce the health and criminal justice-related cost of domestic violence and abuse.

The scheme would introduce two processes for disclosing information. The first is activated by a request by a member of the public, which is based on the right to ask for the information. The second is where the police make a proactive decision to disclose the information to protect the potential victim. That is based on their right to know. Officials have kept in close contact with colleagues in the Home Office throughout the pilot scheme in England and Wales for the two processes and during the introduction and roll-out of the full domestic violence disclosure scheme back in March 2014. In parallel, officials have consulted stakeholders across the statutory, voluntary and community sectors on a new strategy to tackle domestic and sexual violence and abuse.

In the draft document, a disclosure scheme was mentioned, and a number of respondents welcomed the consideration and implementation of such an initiative. That gave officials some indication of the appetite to have a scheme similar to that in other jurisdictions. Officials have also liaised with the PSNI — we have George here — and that will be vital in ensuring the appropriate and efficient operation of such a scheme in Northern Ireland. Throughout discussions with other jurisdictions and with the PSNI, we have considered whether a legislative vehicle is required to facilitate the implementation of such a scheme. As with the model used in England and Wales, the PSNI has advised that it would be able to operate the scheme within existing powers and that no legislation is required. The ability to disclose information under this type of scheme is assessed on a case-by-case basis. The assessment must consider whether disclosure or non-disclosure is lawful, necessary and proportionate to justify the decision made. That is based on having due regard to common law; article 8 of the European Convention on Human Rights, that is, the right to respect for private and family life; the Data Protection Act 1998; and the rehabilitation of offenders legislation. A further assessment is also required where sharing intelligence on or details about a person's previous convictions that are considered confidential is concerned.

A three-stage test is needed before such a decision to disclose is made. There is a power to disclose the information. As the disclosure scheme is reliant on common-law powers, the police must be able to show that it is reasonable to conclude that such disclosure is necessary to protect the public from crime. In the context of the scheme, the police would have to conclude that disclosure to the applicant is necessary to protect the person from becoming the victim of domestic violence. The second test is that there is a pressing need for such disclosure, and the third test is interfering with the rights of the offender. As I mentioned, under article 8, the information about his or her previous convictions being kept confidential is necessary and proportionate for the prevention of crime. That involves considering the consequences for the offender if his or her details are disclosed against the nature and extent of the risk that the offender poses to the victim. That stage of the test also involves considering the extent of the information that needs to be disclosed. For example, it may not be necessary to tell the applicant the precise details of the offence for the applicant to take steps to protect themselves or the possible victim.

I would like to explain briefly the processes of the scheme, particularly because, as we were saying, it is not in legislation per se, so it is good to get it on record to make you fully aware of the context. In England and Wales, police will conduct full checks on police database systems to inform a risk assessment for the applicant. The police will then send information about the previously violent individual to a locally determined decision-making forum, which will then make a decision on whether to disclose the information to the applicant. It is important to note, therefore, that information is not automatically disclosed following a request. The general process is that a referral based on police checks and risk assessments is referred to a multi-agency decision-making forum. That forum must justify that there is a pressing need to make a disclosure and that the disclosure is lawful and proportionate to protect the potential victim from future crime. That said, it is worth emphasising that if at any stage of the process the police identify that the potential victim is at immediate risk of harm and there is a pressing need to disclose which is lawful, proportionate and necessary, they may bypass the decision-making forum stage and make a disclosure straight away. Therefore, while processes have been established in England and Wales for the disclosure scheme, we believe that it is necessary to consult the key stakeholders to determine the most effective processes that will produce a fit-for-purpose model for Northern Ireland. Additionally, there will be resource issues, no doubt for police and other agencies involved and including the wider decision-making forum, that will have to be addressed and that will be considered in parallel as we consult with the key stakeholders. Depending on the outcome of the consultation, we may decide on a pilot for the scheme before fully implementing it here. That would be similar to the approach that has been taken in England, Wales and currently in Scotland.

The next steps are that we plan to launch a full public consultation on the domestic violence disclosure scheme as soon as practicable. We know that the PSNI and other stakeholders are keen to consider its potential shape in the context of the existing public protection framework. We also want to ensure that, as we develop the scheme, we take cognisance of the lessons that have been learned in England, Wales and Scotland and as a result of the reviews currently under way in those jurisdictions.

We anticipate coming back to the Committee with a full draft of the consultation document in due course. However, I am keen to hear your views and am happy to take any questions that you may have.

The Chairperson (Mr Ross): Just to start off, you said that no legislation was necessarily required to do this. One of the issues that I raised at Consideration Stage was that a number of domestic violence charities oppose Clare's law on the basis that so much domestic violence is never reported and there are so few convictions for those incidents of domestic violence. This sort of scheme could lull women into a false sense of security: they could ask for disclosure of information, there are no convictions there and they think that they are safe, whereas that is not the case. I am not saying that that is a reason not to do this, because I think that there are arguments on both sides, but it is an argument that needs to be made in parallel with a wider domestic violence strategy or initiative. Is it the Department's view that you will take both together at the one time?

Mr McCourt: Yes.

The Chairperson (Mr Ross): You mentioned that, even if somebody has a conviction for domestic violence, the test will still be whether it is proportionate, necessary or lawful to release that information. Can you give me an example where an individual who has a conviction for domestic violence is now living with a partner and that partner then makes a request for the information to be disclosed but it will be withheld? What sorts of reasons would be given for not disclosing information about somebody who has a conviction?

Mr McCourt: I will ask George about such cases, because it will be for the police to make those decisions.

Mr G Clarke: Rather than trying give you a concrete example, I think that it is important to say that any interference with anybody's human rights needs to be proportionate, lawful and necessary. Therefore, it would be unwise to ever reach a stage in the scheme where there was an automatic level of disclosure. The fact that we may, in the here and now and on the spot, find it difficult to generate a concrete example of exactly what that would be should not be taken as saying that those circumstances will not occur. For example, there may have been a particular type of offending that the offender has identified with their risk manager, including a particular set of triggers, that they now have under control and are managing, so therefore it would be reasonable to assume that, if those triggers have been removed, the risks will no longer continue.

The Chairperson (Mr Ross): To make it easier for us to understand how a scheme works, you may have somebody who, for example, is an alcoholic or a recovering alcoholic, which is one of the triggers for domestic violence. If the assessment is that that individual has been dry for two or three decades, that is a type of —

Mr G Clarke: That is a potential consideration. To simply say that there would be automatic disclosure would not be to give the due weight that is needed to the article 8 rights of the offender. I do not want members to get the idea that there is some sort of hierarchy; it is a balancing exercise between the article 2 and 3 rights of the applicant or the person who is at risk and the article 8 rights of the offender. We have to allow ourselves the margin for that balancing act to be carried out.

The Chairperson (Mr Ross): In much the same way as it is difficult to ascertain what the immediate risk is because so much of this is behind closed doors and it is hard to understand what is going on in domestic settings, can information be disclosed about an individual who has had a series of complaints made against them but has never been convicted of an offence? It is so difficult to get convictions for domestic violence, but convictions for physical violence may be easier to obtain than convictions for some of the other types of domestic violence. If, in an individual's previous relationships, complaints have been made to the police about behaviour, can that be disclosed, or is it disclosable only if that person has had a conviction?

Mr G Clarke: My understanding is that this is conviction-based.

Mr McCartney: When the filter is being done, do you examine the particular conviction and how it related at the time? Say someone could be done with actual bodily harm, do you go and identify the actual bodily harm as a relationship?

Mr G Clarke: I think the question that you are asking is this: we would be disclosing within a domestic violence setting, so do we know that the offence has been committed in that setting? The answer is yes.

Mr Douglas: Thank you for your presentation so far. Steven, you mentioned schemes in England and Wales. I think that there was also a pilot scheme in Scotland last year. Are there any other international experiences that we can learn from? Are there any other countries involved in similar schemes?

Mr McCourt: Because this is a developing situation, we have not looked beyond the existing schemes in the jurisdictions in England, Wales and Scotland, so I cannot comment on that. However, it is something that we would look at in developing the consultation paper that we are bringing forward.

The Chairperson (Mr Ross): Does anyone else want to ask questions? No. OK. We are keen to be kept up to speed with any developments in this area. It is an interesting and challenging one for us, and we should make sure that we get it right. We appreciate you coming up today. Thank you for that.