Official Report: Minutes of Evidence

The Chairperson (Mr Givan): Brian Archer has joined us. Brian, if you would like to give us a brief overview of your submission on the Protection from Stalking Bill, we will ask questions afterwards.

Mr Brian Archer (Law Society of Northern Ireland): Thank you very much for the opportunity to speak on behalf of the Law Society. It is very much appreciated. I know that you have a very busy schedule today.

The society welcomes the work that has been carried out on the Bill to date, and we are very supportive of it. Clearly, in the past, there has been a lacuna in appropriate legislation, and the Family Homes and Domestic Violence (Northern Ireland) Order 1998 did not always cover it, because stalking can take place when there is no relationship between the perpetrator and the victim in the case.

In 2019, the British crime survey showed that, in the previous 12 months, 1·4 million people had been victims of stalking. Indeed, the British crime survey felt that there were five million stalking victims across the country. In a Northern Ireland context, you are talking about 30,000 people, which is horrendous. The academic study that was carried out by Queen's University — I know that the Department has been working on this legislation since 2016 — showed that, in 2016, there could be 100 incidents before the matter was referred to the police. That is absolutely horrendous for the victims. Thankfully, this Bill will, hopefully, be on the statute books quite soon.

The Bill mirrors the Scottish legislation, which has been in force since 2010, and that contains a list of behaviour that falls into legislation. That is to be welcomed. Obviously, the list is not exhaustive; it is a guide. We also welcome the provision on abusive and threatening behaviour, which is where the behaviour falls short of stalking but falls into a criminal category of its own. We also welcome the fact that it is not just summary only offences that will be dealt with. Where there is repeat offending and aggravating features, it is appropriate that the case is dealt with by the Crown Court. The protection in the Bill that prevents a defendant from cross-examining a victim directly is to be welcomed. That is similar to other legislation relating to sexual offences.

Re the revisions, we think it extremely important that the legislation allows the Chief Constable to make an application to the court for a stalking prevention order (SPO), even without a conviction, where there is evidence of stalking behaviour that may fall short of the prosecution test. A balancing effect needs to be taken into account, in that a perpetrator has rights of their own. Those rights are protected and include article 8 rights: the right to work, and the right to education.

Children as young as 10 can face prosecution and be liable to stalking prevention orders. Although it may be concerning that the legislation will also come into play in youth courts, we like to think that young people who fall into that category can be educated. Due to the situation with social media, many young people do not fully realise the implications of being involved in cyberbullying. We hope that educational work in that area can be carried out in schools so that young people are fully aware of the consequences of their actions, which can impact on them into adulthood. The third sector in particular has welcomed the work that was carried out. I worked with Include Youth in the past, and I still do. It carried out individual work with young people

so that they avoid such behaviour. Unfortunately, ignorance is not a defence against the law, so they can find themselves on a register. Although there is a criminal legislative framework, it is extremely important that education takes place in schools to avoid young people being criminalised because of that behaviour. That would also be beneficial in preventing future victims.

Do you wish me to cover anything else?

The Chairperson (Mr Givan): No, Brian. I am happy to pick things up in questions, as, I am sure, are other members. Thank you for that overview.

I have a couple of questions to start. Are the provisions on the additional offence of "threatening or abusive behaviour" in clause 2 useful, or do they have the potential to be used instead of pursuing the actual stalking offence?

Mr Archer: The legislation allows the Department to issue guidance to the PSNI, and it will work in conjunction with the Public Prosecution Service (PPS) on that. Every circumstance will be looked at to see whether it meets the prosecution test. It depends on the evidence in the given case, but there is a crossover. The abusive or threatening behaviour may

a court to convict somebody of that lesser offence, especially in a situation where there is a not a course of conduct: there are not two or more instances. That would be more appropriate in those circumstances, but every case will have to be looked at by the Public Prosecution Service and, ultimately, by the court.

The Chairperson (Mr Givan): Thank you. I will bring in members, and I might come back on some of the questions.

Ms Dillon: Thank you for coming to the Committee, Brian. The first point that I want to pick up on is that your submission refers to the need for PSNI training. It is an absolute certainty that you will get no pushback from this Committee about training. One issue that was raised by the Committee previously — specifically by Rachel Woods — is the training of the legal profession and the judiciary. We cannot legislate for that. That is outside our control, as it should be when the legal profession is involved. I am trying to establish how that works. Is there any uniformity in the training when new legislation comes in or is it up to each individual or practice? How does that work? Training for the judiciary is a separate matter.

Mr Archer: I am here today on behalf of the Law Society. I cannot speak for the judiciary, but I have experience. I have been a deputy district judge for 14 years, so I am au fait with the training that is available. First, I will deal with the Law Society. The Law Society's continuing professional development (CPD) programme runs courses every year. Obviously, that has been difficult this year, but it has a Zoom platform. This year, the Law Society provided 96 hours of training to solicitors across a wide range of civil, criminal and family law legislation. Jennifer Ferguson manages professional development training in the Law Society, and she will be on top of this. I have no doubt that the Law Society will run CPD courses on the subject before the legislation comes into force. The Law Society will invite people from the PSNI and the PPS to the training. We are covering the same area, and cooperation is important within the justice sector.

As far as the judiciary is concerned, the Judicial Studies Board runs regular training sessions, and it will link in with the Department of Justice on that. The sessions will be provided to all tiers of the judiciary, from magistrates through to the Court of Appeal.

Ms Dillon: OK. I appreciate that, Brian. It is helpful to know that. We cannot make that training mandatory through legislation, and neither should we, given that they are separate organisations. However, it is important that the training is right at every level. It is worth repeating that the legislation is not worth the paper it is written on unless people understand how to use it.

Mr Archer: Definitely. The presiding judge, Judge Bagnall, will also be involved in that with the lower judiciary.

Ms Dillon: I really appreciate that. You raised the potential for hybrid charges as opposed to the summary charge.

Mr Archer: The legislation covers indictment as well. Hopefully, when the Bill comes into law, that will remain. We are very supportive of that because summary judges are limited by the nature of their office. They can impose sentences of only up to 18 months for consecutive offences. Obviously, that does not apply in the Crown Court. On conviction or plea of guilt, Crown Court sentences are extremely high for harassment compared with those at Magistrates' Court level. The sentence can be 10 years on indictment for stalking and five years for the lesser offence of intimidating, abusive behaviour.

Ms Dillon: OK. I appreciate that.

What about the rehabilitation period being factored into the protection?

Mr Archer: We were concerned that the rehabilitation period seemed to be missing from the legislation.

Ms Dillon: Will you clarify whether that relates to the orders or the offence? Am I right in saying that, with orders, you do not need to be guilty of a criminal offence and that rehabilitation is linked to a criminal offence?

Mr Archer: That may come out in a criminal justice check. More information might be provided for the civil application, but the breach of the order is a criminal offence under the stalking prevention orders.

Ms Dillon: OK. My next point has been raised by a number of organisations, and I agree that a six-month maximum is not long enough; a 12-month maximum sentence is needed. Like any other sentence, the maximum will probably be used very rarely. You talked about the need for resources. You will get no pushback from this Committee on that issue. It needs to be resourced.

Finally, and Jemma Dolan put this question to some organisations last week, do you know whether there are enough rehabilitation programmes? Do we need additional resources for those?

Mr Archer: The Probation Board will, undoubtedly, have to submit a bid to the Department of Justice for increased resources. It is a very under-resourced organisation. Its role has expanded greatly over the past 10 years, never mind going back to the imposition of passing probation orders from the 1990s to 2008. Probation can also refer offenders on to work with third parties. I am aware of NEXUS, which works with people in Hydebank who were victims as well as perpetrators of sexual abuse. I imagine that the Probation Board will use those links as well to bring in expertise from outside its organisation to work with offenders. It is very important that rehabilitative work is done, because, hopefully, it will stop people reoffending and creating more victims.

Stalking is a very insidious offence. You will be aware of the case of the journalist Ms Maitlis, who suffered 25 years of abuse — it is unbelievable — and being a victim because of that person. No one wants that ever to be repeated. There is a great need for this legislation in this jurisdiction.

Ms Dillon: I appreciate that. Thank you, and I agree with you. The Probation Board is severely under-resourced. When we look at this year's budget and the plans of the Probation Board to improve its services, it will be lucky if it is able to maintain its services, never mind improve them, and that is through no fault of its own. I appreciate that. Thank you very much, Brian.

Mr Frew: Thank you for your attendance, Brian. My questions centre on clause 2, which relates to the offence of threatening or abusive behaviour. We have already touched on it, and I have read what your submission says about it. Why do you think that there is a need for clause 2?

Mr Archer: There is a need for clause 2 because not all behaviour will fall into the bracket of stalking. If the evidence is not of the requisite standard of being beyond reasonable doubt in respect of committing two or more offences, and there is clear evidence of only one offence, it is open to the court. The court has to bear in mind and consider the evidence on issues of credibility, but it might also have to consider issues of identification. You could be relying on a victim giving evidence where they believe that they are being followed or that the perpetrator was at a venue where they were, but they could be mistaken on that, so a court may not always be able to convict a person on the basis of the evidence. Judges have to balance the evidence. It is not a question of simply convicting people; there is a duty to ensure that people get a fair trial, and, if the evidence is not satisfactory, the person will not be convicted. However, they may be guilty of one incident, which would fall into the lower charge.

Mr Frew: Excuse my ignorance, but can they not at that point be charged with another offence that is already on the statute books, or does it have to be kept within the clauses contained in this Bill? How does that work?

Mr Archer: If the judge finds a person not guilty of stalking, under the legislation, it is open to the judge to find that person guilty of a lesser charge, if the evidential test is met.

Mr Frew: The new offence is described as follows:

Is this not covered by our common assault offence or even harassment?

Mr Archer: Common assault is about the immediate fear of violence, not necessarily alarm. Common assault is a very specific offence under section 42 of the Offences Against the Person Act 1861.You are right to say that there does not need to have been physical contact for a person to be guilty of common assault. You must put the other person in fear, but I would say that alarm is less than fear of immediate violence and that it is a lower threshold.

Mr Frew: OK. That is very interesting. Why do you think that recklessness has been included in clause 2(c), which says:

but recklessness is not included in the actual stalking offence at clause 1?

Mr Archer: Stalking tends to be more premeditated behaviour. You have thought about it, and you have decided that you want to make contact with or follow a person, physically or through the use of IT. Recklessness is a provision found throughout the criminal justice system, even in criminal damage or assault charges. Where there is an element of intent, there is normally an element of recklessness as well. It is not an appropriate defence to say, "I did not intend this. I just didn't give it any thought". The element of recklessness will capture those circumstances. Otherwise, you might have a situation in which somebody giving evidence says, "I never intended this. I never thought anything about this. It never entered my mind". It could be argued that they have a potential defence, whereas, if elements of the offence include recklessness, that defence is not open to them.

Mr Frew: OK. I get that. Further on, the clause refers to:

Mr Archer: Yes.

Mr Frew: Can you think of a circumstance in which a course of conduct could not be classified as stalking? Do you see what I am getting at? Surely, if there is a course of conduct — one or more incidents — that should be the stalking offence.

Mr Archer: Yes.

Mr Frew: I do not understand, then, why it has been included in the clause. Maybe it is just a catch-all.

Mr Archer: It may be the drafter's intention to have a catch-all situation. Where there is more than one incident, I would expect stalking to be the main charge.

Mr Frew: I have exhausted my questions on clause 2.

Earlier, we talked about using an intermediary or third party to stalk. It could be a child, even if they do not know the intention behind it, another family member or even sending someone in your employ to spy on or stalk someone on your behalf.

Mr Archer: An adult should use their judgement, given the circumstances. It certainly would not be a normal direction from an employer to an employee unless they worked in surveillance or private investigation. The legislation has provisions for investigation for the purpose of prevention of crime. There is also the element of overall protection; it has to be reasonable in the circumstances. That defence can apply to the likes of a parent or guardian who is concerned about a young adult who may be vulnerable. When my son was younger and at school, I just wanted to make sure that I knew where he was. I had a phone tracking app because he might not always have told me where he was. That is no longer the case, thankfully, now that he is almost 23.

Mr Frew: He has probably put a track on your phone now to make sure that he knows where you are.

Mr Archer: That is normally to pay for things.

Mr Frew: Do you understand where we are going here? This Committee did a lot of work in relation to the situation of the child in a domestic violence setting, including the use of the child and the threat that there could be to the child without the child even knowing about it. If we were to put a clause in the Bill about the use of a third party, we would probably have to go into the realms of what you have just said: someone could ask someone else to spy or stalk. Straight away, you think of a private investigator.

How do you make sure that you protect the victim against a third-party stalker or intermediary?

Mr Archer: You would imagine a third-party situation would be quite rare in the circumstances, because if the person was law-abiding and felt that they were being given a direction that was a breach of the criminal law, they would refuse to do it and would possibly report the client to the authorities. The third-party situation is obviously possible and could be abused. A person could unknowingly become involved in a stalking situation.

Mr Frew: Yes. Take my trade, for instance; I was an electrician. If I sent my apprentice round to an ex-partner's house to keep an eye on them, who would be stalking then? Would I be guilty, or would my apprentice be guilty?

Mr Archer: Both. It would be a joint enterprise situation.

Mr Frew: Right, OK.

Mr Archer: If you were telling him to keep an eye on her, that would obviously be outside his employment role in the trade and would fall under joint enterprise, so both of you would be liable for prosecution.

Mr Frew: Just to clarify, I did not engage in any of that sort of behaviour when I was on the tools, Brian.

Mr Archer: I am glad to hear it.

Mr Frew: That is me, Chair. Thank you very much.

Ms S Bradley: Thank you, Brian. I read your submission and listened to your presentation. It is important that we pin down and widen the piece on online activity as broadly as we can.

Mr Archer: Yes.

Ms S Bradley: Is there a danger, Brian, that young people — you referenced people as young as 10 — may be engaged in behaviour online that constitutes stalking and could therefore be brought forward under the legislation?

Mr Archer: Yes, they could be brought forward under the legislation in the youth court. I have personal issues with the age of criminal responsibility. It is too low in this jurisdiction, but that is a different argument. Young people are criminally responsible from the age of 10 upwards in this jurisdiction, so they can be liable for their behaviours. Obviously, the Youth Justice Agency would be involved, and if it is satisfied that it has been proven that the act was carried out by a young person, you would like to think that it would do some diversionary work with them in order to avoid a conviction in the court.

Ms S Bradley: Thanks, Brian. I fully agree with that. I am really mindful of how this legislation is set apart from other legislation that we have. It really looks into the online world, which is where most of those young people are. You talked about young people being reckless, how that was maybe not their intention and all those possible defences.

I agree with you about the age of criminal responsibility, but should there be some type of safeguard? That might not just be for the child's behaviour, because obviously the educational piece should reach out and teach them what good online behaviour looks like. It could be that the young person is at that age where they have an idol, be that a YouTuber or a singer, and their behaviour, technically and on the face of it, might fit stalking. We need to understand the grey area in between and to recognise that a child at that age, as Paul said, may be committing the act of stalking but be commissioned to do so by another person. How do we separate those? I am really concerned that we could be loading this in a way that will be really detrimental to young people. Your thoughts on that would be appreciated.

Mr Archer: The young person could have been totally innocent of the situation and thought that they were acting on behalf of a parent, who asked them, "Can you go around for a message for somebody?" I remember when I was a child that my mum would send me to neighbours in particular circumstances. I do not think that they would be prosecuted under those circumstances, unless there was evidence that they were aware. Obviously, the older they are, the more that that becomes an issue.

Where young people are concerned, it really is so important that education work be carried out in schools and that organisations like Include Youth, which works one-to-one with young people where it deems that they are at risk, are used. It tailors

behaviour. Nobody wants a young person to be prosecuted. Obviously, the victims have to be protected.

When the sexual offences legislation was brought in and the register

I have been practising law for 26 years, and I have to say

very mindful of being placed on the register, and that is the one thing that they will try to avoid in all circumstances.

sent to custody. Obviously,

which I think

similar deterrent for young people or anybody committing these offences. Because the young people are involved

age of responsibility from the age of 10, I do not think that this legislation

rely on adults

Ms S Bradley: Thank you, Brian.

Mr Archer: Young people will already fall into it. That is why I ask you, as legislators

so that there is a comprehensive, all-inclusive approach in the Department of Education and, obviously, the Department of Justice.

Ms S Bradley: Thank you, Brian.

Miss Woods: Thank you, Brian. I am more than happy to speak to you about the minimum age of criminal responsibility at any time. It is a favourite topic of mine, and, hopefully, we can have some movement on that at some point. I have equal concerns on this and on any offence that we are putting through in new legislation on the impact on children and young people from the age of 10, but I will leave that for another time.

A couple of the questions that I wanted to ask have already been asked. I want to pick up on something in page 3 of the submission about the provision for an NI resident living outside the jurisdiction engaging in this type of behaviour. The PSNI raised concern about that and about its powers over residents and non-residents, especially over the internet, with the use of IP addresses and so on. You mentioned in the submission the:

Is that application limited to any particular type of behaviour? Are you talking about online behaviour, or is it limited in general?

Mr Archer: It is limited in general, but this sort of offending is really going to fall from people who live outside the jurisdiction and are victimising people who are resident in Northern Ireland. It is going to be online behaviour and cyber abuse. The PSNI and the justice authorities have the responsibility to protect people in this jurisdiction, and it is just giving them another power to do that because people can reside in a different jurisdiction. If an offence is committed, it is up to the PSNI and the PPS to seek the extradition of somebody from another jurisdiction.

Miss Woods: Thank you. It is good to get that clarified. I had another question on hybrid, but Linda asked that. On clause 8, you talked about proportionality. That is where avoiding interference with the accused person's right to work, attend education or practise religion is seen as entirely proportionate. What would you say about that if the stalking behaviour were taking place at work, in education or at a religious setting?

Mr Archer: For students, the school would have to put in place conditions to ensure that the behaviour is not repeated and that the person who is the victim is not put in any further distress.

In the workplace, employers have legal responsibility to ensure well-being, because it falls under health and safety legislation. They have a duty to their employees on both matters. In a lot of employment areas, certainly in the public sector, if a person is convicted of a criminal offence, they have a duty of disclosure to their employer, depending on their contract, and that might lead to internal disciplinary matters, which, depending on the circumstances, can lead to dismissal.

It is more difficult with attendance at religious venues, because there is no formal contract between the parties, but, again, the organisation that runs the religious institution would have to take steps and may have to bar the person who is deemed to be the offender, if that person is convicted.

Miss Woods: OK, so it would be up to the relevant organisation or business rather than having anything set down. Legislation has an exemption through protection orders and so on. Would responsibility go on to, say, the private business or the Church?

Mr Archer: Yes, but if there is a prosecution, it is also up to the Chief Constable of the PSNI to make an application for a stalking prevention order. The judge dealing with that would have to weigh up the specific circumstances and could put prohibitions in place and put in conditions whereby the person has to seek assistance and help through the Probation Service or any other service so that they do not repeat that sort of behaviour. It is a balancing act, and every case will depend on its individual circumstances.

Miss Woods: I appreciate that. I appreciate why that is there; I absolutely do. However, if we have a situation where someone is the victim of stalking behaviour at those places and the person stalking is exempt under the legislation from having —.

Mr Archer: The judge will have to decide. It is a question of degree. Stalking covers such a wide area. You can have stalking where there are only two incidents, whereas you can have, as in the Maitlis case, stalking that lasts 25 years and there are hundreds, maybe thousands, of incidents over that period. There are two extremes, and the legislation is trying to cover that.

Miss Woods: OK. Thank you. That is all from me, Chair.

The Chairperson (Mr Givan): All members who wanted to come in have done so. Brian, thank you very much for taking the time with the Committee today. It is much appreciated.

Mr Archer: You are welcome. It is a privilege to give evidence before you. The society appreciates it. If you have any follow-up queries, you can contact the Law Society, and we will be happy to provide any information that you seek.

The Chairperson (Mr Givan): Super. Thank you, Brian.