Official Report: Minutes of Evidence

The Chairperson (Mr Givan): I welcome, from the Northern Ireland Human Rights Commission, Les Allamby, chief commissioner, and Sarah Simms, policy and research officer. This session will be reported by Hansard, which will publish a transcript on the Assembly website. I invite Les to outline the key issues with the Bill and any gaps or issues that the commission wants to draw to the attention of the Committee. After that, we will move to questions and discussion.

Mr Les Allamby (Northern Ireland Human Rights Commission): Chair and colleagues, thank you for the invitation to today's meeting. There are two parts to our evidence: I will cover the Bill's provisions, and my colleague Sarah will look at the implementation issues.

The Bill helps to fulfil the Istanbul convention, which is the Council of Europe's convention on combating violence against women and domestic violence. The UK signed the convention in 2012, and it has committed to ratifying it and reporting on its progress. We would like to see a timeline for that. The Bill contributes towards the ratification and recognises the fact that the substantial majority of victims are women and the substantial majority of perpetrators are men. The commission responded to the consultation document and the Bill itself, and we welcome the fact that many of our recommendations have been incorporated in the Bill, including a wide-ranging definition of stalking, a recognition of cyberstalking and the provision of stalking protection orders (SPOs).

We have raised a few issues about the Bill that do not detract from its overall purpose or value. The first is that the application for a stalking protection order, under clause 8, can be made against an individual, prohibiting a wide range of behaviours that are set out in the legislation. We have a slight concern that, while that may prohibit the stalker from behaving in a certain way, it may not prevent him or her from using an intermediary to behave in a way that is designed to continue to threaten or intimidate a victim of stalking. We know that there is a relationship between coercion, controlling behaviour and stalking in many instances. It is not beyond the imagination that a perpetrator could use his controlling influence on someone else to continue the stalking. It should be made clear in the Bill that utilising intermediaries can be added to the behaviour that is prohibited.

Our second issue does not need to be dealt with in the Bill, but it probably needs to be dealt with in the guidance, and it is retrospective operation. Under article 7 of the European Convention on Human Rights:

In other words, you cannot offer a heavier penalty than was applicable at the time of the offence. Stalking often recognises a pattern and a conduct of events, some of which may span the time before and after the legislation, particularly in the early days. We have to recognise from the research that the victim often takes considerable time before she or he is prepared to go to the police or to other authorities. I have seen research that suggests that it can take 100 acts before somebody goes to the authorities. However, we think that that can be dealt with.

We have looked at the CPS guidance, which makes it very clear that, in England and Wales, you have to operate in dealing with the acts after this legislation comes into place. However, there are ways in which you can take account of earlier acts, using bad character etc. It can be dealt with, and it will be useful to draw that to the Department's attention.

The third issue, after which I will pass you to my colleague, Sarah, is the value of post-legislative scrutiny. The Committee does a good job, as it is doing now on pre-legislation, but legislation is only as good as its implementation, and that, frankly, requires resources for training, public education, victims' services and services to help perpetrators to understand their behaviour and to prevent them from offending again. It will be useful for the Committee to monitor those implementation issues, perhaps in 12 months' time.

That is a useful way for me to hand the baton to Sarah to talk about the implementation issues in more detail. I will go on mute and pass you to Sarah.

The Chairperson (Mr Givan): Thank you, Les.

Ms Sarah Simms (Northern Ireland Human Rights Commission): Good afternoon, and thank you for inviting us. As Les outlined, I will make a few opening remarks on the implementation of the legislation.

Les touched on the Istanbul convention. It requires that policies, programmes, frameworks and monitoring mechanisms are aimed at eliminating all forms of gender-based violence against women more widely. In line with the Istanbul convention, and as the UK moves towards ratification, Northern Ireland should contribute in all aspects including implementation. For example, it should ensure training across the criminal justice system, including gender-sensitive training for judicial and law enforcement officers, to work with victims of stalking. Training has also been recommended by the UN Committee on the Elimination of Discrimination against Women (CEDAW) and is referenced in the Gillen report's recommendations, which require implementation.

We recommend raising awareness and campaigning on the new legislation, on the offence of stalking and cyberstalking, and on what constitutes the offence, as well as addressing the wider issue of education about gender-based violence.

Another matter for implementation concerns data collection. It is important to gather statistical information, which is necessary to identify perpetrators' behaviour, support for victims and support for victims more generally, acknowledging the important role of NGOs in supporting victims and ensuring that support is accessible, local and officially resourced. For implementation, steps are needed to ensure that disaggregated data on all forms of stalking is gathered and monitored appropriately.

Regarding perpetrators, we recommend appropriate rehabilitation of offenders, which helps to address recidivism. That is all from me. Thank you.

The Chairperson (Mr Givan): Thank you, Sarah. Sarah, do you mind muting? I think that the feedback must be coming from your device. Apologies, and thank you.

I will bring in Linda Dillon and then Sinéad Bradley.

Ms Dillon: Thank you, Chair, and thank you to Les and Sarah for their remarks.

I have a couple of points. On the retrospectivity that Les raised, obviously we want the best outcomes and protection for victims, but we do not want to do anything that does not comply with human rights. We have to find a balance. Is it a matter of outright prohibition or are there circumstances under which it is permissible? Regarding the offending behaviour that is categorised in the offences currently dealt with under harassment legislation, if someone has engaged in offending harassment behaviour, which is now prohibited under stalking legislation, will that be permissible? The SPOs are not criminal convictions. They are protections where police consider an offender or an alleged offender to be a genuine threat to a victim. Do the same conditions apply in relation to retrospectivity? As I said, we want to protect victims, but we do not want to do that at the expense of human rights.

Chair, if you do not mind, I will let Les answer that, because it is quite a bit in one question, and then I will come back with a few other short questions.

The Chairperson (Mr Givan): No problem.

Mr Allamby: Yes, I can deal with the first one reasonably straightforwardly. There is nothing in the retrospectivity that would stop the PSNI, for example, prosecuting someone under the Protection from Harassment (Northern Ireland) Order. I think that Doug asked earlier if this new legislation is much better: it is. It is clearer and much more forensically focused. It has the advantage of naming stalking for what it is, for public education and so that people understand that the behaviour can be a criminal offence.

You can utilise the previous legislation. On the other hand, if the behaviour spanned before and after the new legislation, which is the reality in many cases — it is not a single event; it has been a series of events — clearly, you have a way in which you can utilise the behaviour after the legislation coming in. It is about how you use some of the earlier behaviour, and, as I said, there are ways in which that can be done. The CPS guidance suggests that it can be done regarding bad character etc.

We would have to go away and look at whether you could utilise stalking prohibition orders if the behaviour all happened before the new law and then, for some reason, stopped after the new law, and you were still feeling very threatened or unnerved. We would have to go away and think about that, because, amongst other things, of course, if you then do have a stalking prohibition order and you fail to abide by that order, you can move into committing a criminal offence. We know from experience that orders that aim to prevent domestic violence are often breached. Therefore, there is a kind of continuum to a criminal offence. I do not have a definitive answer to your second question, I am afraid, Linda. However, I think that it is something that the Department, hopefully, will be aware of and wise to.

Ms Dillon: I appreciate that, Les, and thank you. I am trying to bottom these issues out rather than leave them unchallenged, so I appreciate your comments around that.

You have recommended the need for clarity on whether the rehabilitation of offenders legislation will apply to all stalking offenders and whether stalking offences will be a spent conviction or require disclosure for specific employment. Are you aware of any human rights precedents, guidance or recommendations in that area? You referred to the Istanbul convention. Are you aware of any precedents specifically in relation to that?

Mr Allamby: As far as I am aware, I do not think that stalking is treated any differently from a number of other offences. What I mean is that, if you were convicted of a stalking offence, how long it is before your conviction is spent is determined by your sentence. As it happens, in Northern Ireland, it would be considerably longer than it is in England, Wales and Scotland, because our legislation is considerably less liberal. It has not been reformed in more than 40 years, and we spent last week challenging the spent convictions issue. Our challenge last week was about the idea that you could never review somebody's conviction of over two and a half years. It is four years in England and Wales and being reformed beyond that. We also have reform in the pipeline in Northern Ireland, as you know.

There are certain forms of employment for which you must declare convictions regardless of whether they are spent. There is no reason to doubt that that will apply, but it will be helpful to get clarity that convictions have to be declared. To work with children and young people, for example, in certain professions, you must declare your convictions whether or not they are spent.

Ms Dillon: OK. I appreciate that, Les. As more of a comment than a question to you or Sarah, as you both referred to implementation and the need for training, I reassure you that we will take the same approach to the stalking legislation as we took to the domestic abuse legislation. The implementation of it is what counts. The legislation is not worth the paper that it is written on, unless the implementation is right and you use that implementation to gather information and data and to decide where resources go, what the best way is to support people and how best to address the issues. Any piece of legislation is only as good as its outcomes.

For us as a Committee — I do not want to speak on behalf of the whole Committee — that was a focus of the entire Committee in relation to the Domestic Abuse and Civil Proceedings Bill, and I have no reason to doubt that we will take the same approach to this legislation. We are not interested in developing legislation so that we can get a clap on the back and be told that it is excellent legislation if it does not have the right outcomes for people. That means the right outcomes for everybody.

The Women's Aid response to our inquiry notes that, as recommended by the Department, the maximum sentence in the Bill for a breach of the SPO is six months. Women's Aid says that it should be 12 months. I am inclined to agree with the maximum. You very seldom see a maximum sentence used, even in the most serious cases relating to any issue. I wonder whether, if the maximum is six months, there is an opportunity to effectively rehabilitate, or at least attempt to rehabilitate, the person. My concern about the length of sentence is as much for the alleged perpetrator as for the victim.

I appreciate your comments and wanted to give you that reassurance about the implementation piece. We as a Committee are very focused on it. Paul Frew, who is not here today, has focused on that because previous Committees have seen legislation not being properly implemented. This is my first time on Justice, and I hope that we are going to stop that type of non-effective legislation being put in place. I have given assurances that I will keep an eye on it, and I will ensure that our party does that, whether or not I am an MLA and on the Committee. I will always be here, whether they want me or not.

Ms S Bradley: Thanks to Les and Sarah for their presentation. The paper submission has been really helpful. Linda has gone over some of the points, Chair, as have you. I want to focus on a very helpful observation that was submitted. It is the reference to the behaviour of a third party. Les, you correctly spoke about the coercive nature of the individuals who can be involved in those cases and how they might manipulate and coerce a third party into assisting them in their stalking behaviours. You helpfully highlighted to us that the Protection from Harassment Order includes a piece on the third-party factor, and, obviously, the way in which it does that is human rights-compliant.

Do you have any further thoughts that you can share with us on exploring the introduction of a third party, given that we are looking at this differently from the Protection from Harassment Order, because we are looking at the online aspect as well? Some of the behaviours, and even the relationship between the stalker and the third party, could be quite tenuous. The accounts could be anonymous, for example. I therefore think that it may not be as clean-cut as the Protection from Harassment Order. I would love to hear your thoughts on that, if there is anything further that you can add.

Mr Allamby: Yes. It is clear that stalking protection orders deal with — this phrase is used in the explanatory and financial memorandum — "stalking by proxy"; in other words, the perpetrator decides to target a person's close friend, family member or someone else as a way of indirectly harassing and stalking the individual. It is not clear to me, however, whether it covers proxy by stalking; in other words, hypothetically, the stalker asks someone else over whom they have influence to start harassing the person. Effectively, the stalker is, if you like, the puppet master, pulling someone else's strings to do the stalking, be it cyberstalking, turning up in certain places or behaving in other ways that intimidate. That individual would therefore not be breaching the order directly, because they are not directly turning up in places or doing things, but they may be manipulating someone else to do so. We are keen to make sure that the legislation is clear that that kind of behaviour is covered by any stalking prohibition order.

Linda made a very welcome point about post-legislative scrutiny etc. For us, a lot of this is about the fact that prevention is better than cure. We think that it is really important that, alongside training for specialist and general policing staff, prosecutors and others, we embark on a public legal education so that the general public understand the ramifications of that kind of behaviour. That is the one area in which, we think, there is a potential, small gap for something to fall through.

Ms S Bradley: Thanks, Les. I agree with you: it is a glaring gap. What I am trying to manage is this question: the Protection from Harassment Order seems to have covered that space or bridged that gap, but do you believe that what it does is sufficient? Is that the type of model that we should be looking to inject into the Bill, or, given that we have to be mindful that the online world is a big part of the Bill, would it need to be scripted in a much tighter way to cover that gap?

Mr Allamby: We think that the Bill, in outlining the behaviours that can contribute to being unlawful, covers cyberstalking. I heard the evidence earlier, and there clearly is an issue where — cyberstalking may apply to this in particular — a person outside Northern Ireland or the UK is harassing and stalking somebody. It would be difficult to take action against somebody who is not ordinarily resident here, unless, of course, they arrive in the UK or Northern Ireland. We think that it covers cyberstalking and that kind of behaviour, as well as physical and other kinds of behaviour, quite effectively. Therefore, we do not really have issues with the breadth of the behaviour, except for where we have raised that, and we are also comfortable with the definition that creates the offence. We think that it has been widely and effectively drawn. It has, obviously, to some extent, utilised work that has been done in England, Wales and Scotland; legitimately so.

Ms S Bradley: That is good to know. Thank you, Les and Sarah. Thanks, Chair.

The Chairperson (Mr Givan): Thank you, Sinéad.

Ms Dolan: Thanks to Les and Sarah. Sinéad has covered my question, which was about the third party. A couple of things hint that the third party will be covered in the Bill. However, that is not explicit or obvious. Chair, can we write to the Department to ask for clarity on that, or, if it is covered in the Bill, to make it more explicit?

The Chairperson (Mr Givan): We can do that, Jemma, yes. That would be no problem.

Les, I want to pick up on one issue with clause 2. There has been a submission. One area where a little concern has been raised about the creation of the offence is that "threatening or abusive" could, potentially, be set at a low threshold and that that could risk restricting freedom of expression. It seems to be lifted from the Scottish model, which is unrelated to stalking but relates to a more common offence. I am keen to get your view on that. Has the commission given thought to the threshold and rights of expression with regard to the new offence?

Mr Allamby: We did think about that, but I have to say that, on balance, when we looked at it, we were reassured by the fact that clause 2 states that, to commit an offence, not only does the person have to behave in a threatening or abusive manner but that:

and that the person:

Therefore, general and, if you like, robust public or political discourse should not readily be covered. Again, there is a defence if the person who is charged can show that the behaviour was reasonable in the particular circumstances. There are a number of filters that should allow it not to have some kind of deadening effect on political discussion or personal or general disputes that are separate from that.

Broadly speaking, we are content. As with anything else, we have to see how that applies. The history of legislation on protection from harassment is that criticism was really about it being difficult to get action taken and prosecution, not that there were prosecutions that were bordering on specious. To date, the history has not been that it is used as a proxy for closing down public debate that is quite legitimate and can, sometimes, be quite robust.

The Chairperson (Mr Givan): OK. Thank you. That is probably something that I will tease out when the Department is before me in the future.

I thank both of you for coming and taking time with the Committee. I am sure that, if we want to follow up on anything, you will be more than happy to oblige. Thank you.

Mr Allamby: Yes. Thank you.

Ms Simms: Thank you.