Official Report: Minutes of Evidence

The Chairperson (Mr Storey): I welcome Brian Grzymek, deputy director of criminal justice policy and legislation, and Lorraine Ferguson, head of the criminal policy unit. Do you not have two other colleagues? Are they going to join by StarLeaf?

Ms Lorraine Ferguson (Department of Justice): Yes.

The Chairperson (Mr Storey): They are Ronnie Pedlow and Alison Redmond. Is that correct?

Ms Ferguson: Yes.

Mr Brian Grzymek (Department of Justice): That is correct, yes.

The Chairperson (Mr Storey): OK. Brian, you are very welcome. Thank you for your and Lorraine's attendance today. We will just ask you to give us an overview and presentation, and then there will be some questions, I have no doubt. Thank you.

Mr Grzymek: Thank you very much for your warm welcome and for giving us the opportunity to brief you on the principles of the Justice (Sexual Offences and Trafficking Victims) Bill, which passed its First Stage in the Assembly on Monday 5 July.

I will give a brief overview of the content and principles of the Bill, then my colleagues and I will be happy to answer any questions you have at this stage. Obviously, I appreciate that this will be part of a long process over the coming months.

The Chairperson (Mr Storey): Yes.

Mr Grzymek: The Bill is significantly smaller than originally intended. As you will recall, we were initially going to put out a much broader miscellaneous provisions Bill, but that was slimmed down. The current Bill now comprises only 22 clauses spread over four Parts.

The Bill has two key principles. The first is to enhance public safety by implementing certain elements of the report of the Gillen review of serious sexual offences cases and a review of the law on child sexual exploitation and sexual offences against children. The other principle underpinning the Bill is to improve services for victims of trafficking and exploitation.

Chapter 1 is primarily concerned with the creation of new sexual offences and penalties, with the first provisions capturing the highly intrusive behaviours often known as "upskirting" and "downblousing". A person found guilty of either offence under those provisions will be liable for a sentence of imprisonment of up to six months or a fine not exceeding the statutory maximum of £5,000 or both on summary conviction in the Magistrates' Court. For the more serious cases, a conviction on indictment in the Crown Court will attract a penalty of up to two years' imprisonment.

The next provisions in this Part of the Bill are designed to better protect children from child sexual exploitation. They create four new offences to deal with an adult pretending to be a child or masquerading as a child and making a communication with a view to sexually grooming a child under the age of 16. The four offences are very much a belt-and-braces approach. They seek to cover all possible angles: communicating with an individual; communicating with a group; communicating with a view to grooming a particular child; and communicating with a view to grooming any child in the group under 16. Importantly, they are not limited to online behaviour. The penalty for each of those new offences is a sentence of imprisonment of up to six months or a fine not exceeding £5,000 or both on summary conviction and a sentence of imprisonment of up to two years for a conviction on indictment.

The remaining provisions in Chapter 1 of Part 1 amend provisions of the Sexual Offences (Northern Ireland) Order 2008. They include removing and replacing existing references to "child prostitution" and "child pornography". Such terminology is now outdated and may be taken as implying that children are in some way responsible for or are willing participants in their own abuse. The Department believes that amending legislative references would go some way to help raise awareness of the status of children as victims of exploitation rather than being willing participants or being complicit in the abuse perpetrated by others.

We are also widening the scope of the definition of "images" relevant to specific offences in the 2008 Order to include live streaming. That will ensure that the law is in keeping with developments in modern technology. It also helps to avoid any ambiguity in the interpretation of what constitutes an offence.

The Bill makes a minor amendment to bring article 22A offences, covering sexual communication with a child, into the scope of extraterritorial arrangements in order to provide further protection to children travelling outside this jurisdiction.

That simply corrects an omission in the current law, where this provision should have been previously included.

Finally, for this chapter, a minor adjustment is also made to the current article 64A offence of paying for sexual services of a person. That clarifies the elements that constitute an offence to avoid any ambiguity in its interpretation.

Chapter 2 of Part 1 brings forward provisions to implement four recommendations in Sir John Gillen's 'Report into the law and procedures in serious sexual offences in Northern Ireland'. First, the provisions will extend the current lifelong anonymity of the victim of a sexual offence and provide for their continued anonymity for 25 years after their death. Secondly, they provide for the anonymity of the suspect in a sexual offences case up to the point of charge. Where a suspect is not subsequently charged, this anonymity will be continued and will protect them during their lifetime and, again, for 25 years after their death. Thirdly, it increases the penalty for breach of an anonymity from the current penalty, which is a fine of £5,000 on summary conviction, to a sentence of up to six months' imprisonment or a fine of £5,000 or both. Finally, this Part excludes the public from hearings of serious sexual offences cases. Only the complainant, the accused, persons directly involved in the proceedings, a witness at the bar giving evidence, any person required to assist the witness, jury members and bone fide members of the press will be allowed to remain in the court during the hearing of a serious sexual offence. The court will, of course, retain discretion to allow any other person to remain in the court, where it considers that that is in the interests of justice.

The provisions of Part 2 cover trafficking and exploitation and extend statutory assistance and support to adult potential victims of slavery, servitude and forced or compulsory labour, where there is no element of trafficking. The provision of assistance and support of such potential victims has been in place in Northern Ireland since March 2016. However, it is not a statutory requirement. Placing the arrangements on a statutory footing provides reassurance for victims that the Department is committed to providing support and assistance to those who have been subject to slavery, servitude and forced or compulsory labour.

The provisions in this Part of the Bill also amend an existing requirement to publish a modern slavery and human trafficking strategy, changing the timing from at least once every year to at least once every three years. By their nature, strategies set out longer-term objectives, with actions or implementation plans recording milestones within each financial year. Bringing forward an amendment to enable a strategy to be published at least once every three years will allow the Department and its partners to focus better on the implementation of actions underpinning the strategic goals and to monitor progress of relevant contributors. As some objectives span more than one year, it will also have a positive impact on performance management.

Part 3 comprises two relatively minor clauses that make adjustments to existing legislation to strengthen the effectiveness of sexual offences prevention orders (SOPOs) and violent offences prevention orders (VOPOs). The SOPO provision amends section 5 of the Sexual Offences Act 2003 to include the offence of "abduction of children in care", under article 68 of the Children (Northern Ireland) Order 1995, in the list of the specified offences for which a SOPO can be applied. That would mean that a SOPO could be applied for in respect of persons who present a risk of serious sexual harm, where they have been convicted of the offence of abduction of a child in care. The VOPO provision amends the Justice Act (Northern Ireland) 2015 to remove the statutory six-month time limit within which a civil complaint must normally be made to court. That will ensure that the behaviour of an offender, evidenced more than six months previous to an application being made for a VOPO, can still be considered by the court.

That concludes my remarks covering the substantive policy content of the Bill at introduction. I take the opportunity also to provide members with a full overview of the small number of amendments that the Department is developing for inclusion in the Bill, which has previously been advised to the Executive. In a number of cases previously, the Committee has expressed interest in those amendments.

Our first amendment is an addition to the Gillen provisions in the Bill relating to the exclusion of the public from hearings of serious sexual offences. It will extend those provisions to include the Court of Appeal as a setting where the public can be excluded from appeal hearings against conviction or sentence in cases of serious sexual offences. In essence, that means that exclusion is in the court when the case is first heard but, if there is an appeal, that appeal will be covered by a similar provision.

There are also three planned amendments covering new policy content, the first of which relates to what is known as the "rough sex defence". Consent to serious harm for sexual gratification has been raised in trials as a defence to serious harm, murder or manslaughter a number of times in recent years. It is addressed in common law. The Department intends to set in legislation the existing common law position that a person cannot lawfully consent to their serious harm for the purpose of sexual gratification. The amendment would give effect to a ministerial desire to address perceived issues of clarity and consistency regarding the application of the existing common law position.

The second new policy amendment relates to what is commonly referred to as "revenge pornography". The provision is intended to make threats to disclose private sexual photographs and films with the intent to cause distress an offence, alongside existing offence provisions that relate to the actual disclosure of such material; in other words, it is not just actually disclosing but the threat to disclose that will become a criminal offence.

The final amendment changes the existing legislation covering the abuse of a position of trust of a child, contained in articles 23 to 31 of the Sexual Offences (Northern Ireland) Order 2008. The amendment will provide greater protection for young people who are in the care of adults in certain non-statutory environments. As I have previously advised the Committee, the Department originally planned to develop the proposal for introduction in the next mandate. However, responding to recent developments in other jurisdictions and to an increasing number of lobbying requests for the law in Northern Ireland to be changed, the Department and the Minister now consider that that important change should be made sooner rather than later. In bringing this proposal forward, the Department has been working closely with the NSPCC to gauge wider views on the scope and the content of the amendment. That included holding a joint virtual workshop with the NSPCC at the end of May that involved representatives from key statutory and community stakeholders. As a result of that engagement and having examined the experience of other jurisdictions, the Department intends to extend the current provisions for abuse of a position trust of a child. The extension will cover the abuse of positions of trust held in sports and faith settings, with a delegated power to enable the extension of those settings in the future, should that be considered necessary.

That brings me pretty well to the end of my presentation. I am sorry that it took a little bit longer than expected, but, for a small Bill, there is quite a lot in it. Thank you again for the opportunity to brief you on the principles of this important Bill. I hope that you found it of benefit. My team and I are happy to answer any questions you have, and we look forward to working constructively with the Committee over the coming months as the Bill progresses through the Assembly.

The Chairperson (Mr Storey): Thank you very much for those introductory remarks, Brian.

What operational concerns prompted the amendments to the sexual and violent offences protections orders?

Mr Grzymek: The SOPOs and the VOPOs?

The Chairperson (Mr Storey): Yes.

Ms Ferguson: I can answer that, Chair. The abduction of a child in care is not currently on the specified offence list for the SOPO. There were difficulties with some of the operational elements by police who, where there was risk of serious harm from a particular perpetrator, could have availed themselves of a SOPO, had the SOPO been in the specified list. It was not included in the original list because, at that time, the 2003 Act provisions were translated across to the 2008 Order. We have no policy objection to its being included if it improves the effectiveness of the order.

The Chairperson (Mr Storey): OK. Some concern was raised. I apologise, because this is a read-over to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. At that stage, there seemed to be an understanding that there would be no further amendments in relation to that. Yet the Bill proposes to amend section 15 of the Human Trafficking and Exploitation Act, which itself amends article 64A of the Sexual Offences (Northern Ireland) Order 2008.

What is the rationale for that? We seem to be almost getting into a debate between legal interpretation and counsel. While it will be accepted that the proposed drafting is slightly tighter than the current wording, when people start to unpick it, they believe that it does not fulfil the original intention.

Ms Ferguson: That is correct, Chair. The Minister wrote to Lord Morrow about that.

That was discovered during the drafting of another provision in the legislation and, at that point, legislative counsel felt that there was ambiguity in how that construct could be interpreted. The difficulty is that, while the Public Prosecution Service (PPS), other lawyers and, perhaps, the courts have a good handle of the law and interpretation, there are other end users of legislation. We felt that it was important for that to be cleared up and clarified in the Bill.

It does nothing to change the policy intent. The Minister gave that reassurance to Lord Morrow, and he agreed that the amendment tidies it up. He did not consider that there was a need to change it, but I think that he accepted that. The Minister wrote to him a couple of times, and there was a bit of an exchange. It does nothing to change the policy intent. It is just there to clarify what constitutes an offence for an end user, bearing in mind that they could be someone who does not have knowledge in the law.

Mr Grzymek: In essence, it is a minor technical adjustment; it has no impact on the meaning of the legislation. However, it makes it crystal clear what the legislation covers. The advice that we got from the First Legislative Counsel was that it was ambiguous and could benefit from being tightened up. It is a tidying-up, but it makes the law certain. Our interest in putting forward legislation is to ensure that it is accessible and intelligible to the people who use it.

The Chairperson (Mr Storey): Would it be possible for us to have sight of any of the advice on that from the Office of the Legislative Counsel?

Mr Grzymek: As you will appreciate, advice from the First Legislative Counsel is privileged. I think that I have summarised it fairly well. If you want, I am happy to summarise it further at this or a later stage, but we would not normally offer that advice.

To be honest, it is not seen as a major change. Where the Department discovers that legislation seems ambiguous or could benefit from improvement, where we can, we will, of course, fix it to make sure that it is crystal clear.

The Chairperson (Mr Storey): You would not expect me to do anything else but ask for that.

Mr Grzymek: Yes.

The Chairperson (Mr Storey): Why I asked —.

Mr Grzymek: No, absolutely. That is why we are here. We are here to answer your questions.

The Chairperson (Mr Storey): Not to cast any aspersions on the legal profession, but a variety of interpretations can be taken from a piece of legal advice. I asked so that we are clear on the ambiguity.

Mr Grzymek: At the end of the day, lawyers often come to different conclusions about legislation. However, we have to go on the best advice given to us. Where we recognise an ambiguity, or one is brought to our attention, we feel morally obliged to try to fix it.

The Chairperson (Mr Storey): On another issue, when are we likely to see the proposed amendment on abuse of trust? Apologies if we have seen that.

Mr Grzymek: That is in an advanced stage of drafting. Some members of the Committee who were here when I was last talking about that will recall that I indicated that we were aiming to put that into legislation in the next mandate. There were some developments, and a lot of stakeholders were very keen that we moved more quickly, so we have done that. In doing so, we did not have the time or capacity to undertake the necessary work that we would have done had it been done in the next mandate. To some degree, that meant that we had to build on what we had.

We are fairly far advanced in the development of that amendment. I am not sure that I can give you a definite time, but I think that we expect it to come forward at some time in the next month or several weeks.

The Chairperson (Mr Storey): I might have a couple of other questions, but I will bring in Jemma.

Ms Dolan: Thank you for coming in and for all the work that you have done. I know that there is a consultation on non-fatal strangulation offences. Does the Minister intend to propose an amendment on that issue, alongside the abolition of the rough sex defence?

Mr Grzymek: The short answer is no. That is primarily because what we are doing with the rough sex defence is turning a common law practice into statute. That consolidates it and means that we can, in fact, tighten it slightly. In essence, it is building on the existing common law set. We are developing new policies in the area of non-fatal strangulation. The consultation on non-fatal strangulation is not over until 17 September. As you might expect, I am loath to write the policy before I have finished the consultation; otherwise the groups who are keen that the Department consults on policy matters before we reach the conclusions would be on top of me.

We are taking this seriously. It takes time to develop policy. I have to look at the consultation, analyse it and put advice to the Minister. She will then advise me on what she wants to do. From that, we will move towards drafting instructions. We will go back and forward with the Departmental Solicitor's Office (DSO), and we will go to the First Legislative Counsel and his team. Some time after that, we will get to the actual policy.

There will be a temptation in some quarters to say, "Let's just fold it in by way of amendment". However, I would much rather develop good policy built on consultation and careful thought. The danger of doing things quickly is that we get them wrong. This is important legislation, and I would much rather that it go in at the beginning of the next mandate in a mature form capable of being enacted and making a real difference to protecting the lives of women, mainly, and men who are subject to that sort of assault.

Ms Dolan: I understand that completely. Other issues that arose from the review of the law on child sexual exploitation have not been included in Bill, including criminalising the possession of a so-called child sex doll. Why has that not been included?

Mr Grzymek: The responses that came back on that one in the consultation were much less clear-cut. Ultimately, we did not feel that we had enough grounds to say that it should be included. It is a difficult area, and we will keep it under review. First, the incidence of those things seems to be enormously rare. Secondly, in the consultation, we did not get clear-cut responses. On balance, therefore, we felt that it was not a priority at this stage. We would be open to change downstream if it looks as though it is an issue. To date, however, we have not had a strong sense that it is a major concern.

Ms Dolan: I have one more question. On clause 4, which deals with the extended anonymity of victims, the Department originally wanted to extend that indefinitely after a victim's death, but, following concerns raised by legal advisers, it reverted to 25 years. What were the concerns, and how did you settle on 25 years?

Mr Grzymek: The advice that we got back from lawyers was that extending anonymity indefinitely after death was problematic. There are a number of legitimate reasons why people downstream may want to access information about people: maybe they are writing a book or doing various other things. The proposed legislation allows for the court to vary or disapply that where necessary. Equally, it could presumably be increased. The advice that we got from our legal advisers was that you had to put a date on it and that putting "indefinitely" would be too drastic a solution. We thought that 25 years was sufficient. It is nearly two generations. We felt that that was a sufficient time after which any likely issues about reputational damage or whatever would be much reduced. It was about a balance. It certainly could have been more or less, but we came to the conclusion that that was a reasonable gap after a person had died to ensure that any reputational or other issues would be much reduced. Again, we are open to discussion on that as the Bill makes its passage through the Assembly. It was a balanced judgement.

Ms Rogan: That is great. Thank you.

Ms Ferguson: During drafting of the legislative provisions, the legal advice was that an indefinite period, as Sir John had recommended, would not be proportionate in law. This was on the basis of European Convention on Human Rights (ECHR) article 10, freedom of expression. It would have meant that someone could not do that within a permanent period. We then had to try to establish a proportionate period that would somehow recognise a period of time that could elapse. As Brian rightly points out, the recognised generation gap is about 20 to 30 years, so we went for the mid point of 25 years. That, in our view, is proportionate. As Brian said, there is an ability for persons to make an application to the court to modify and vary so that the time is increased or even decreased. There may be reasons why a person would want to discharge that period. A victim's family might have had a wish that they wanted something published and the victim's voice to be heard after their death. So, we have taken all that into consideration and considered that the people who can make an application are the right people, in our view, to do that and that that is proportionate. That adds a bit of clarity, and I hope that that is helpful.

Ms Rogan: Yes, that is really helpful. Thank you very much.

The Chairperson (Mr Storey): Brian, thank you for smashing the glass ceiling that the policy is not written before the end of the consultation. You have really given us a real assurance because there was me believing that that was the way that the process was done all along.

Mr Grzymek: When I joined the Civil Service, I am not sure that that was the case actually; in fact, I have been involved in policy for most of the past 40 years and have run many consultations. I can assure you, Mr Chairman, that I have always listened carefully to what came out of those and have often changed my views as a consequence.

The Chairperson (Mr Storey): That is reassuring to know. Thank you for that.

Mr Weir: I have just two points because a number of the points have been covered already. On the anonymity issue, you mentioned those who are exempt and those who are allowed into court.

Ms Ferguson: Exclusion?

Mr Weir: Exclusion, yes. Sorry, I should have said "exclusion". Obviously, that refers to those who are there to support a witness. I presume that it is a reference to either a complainant or a defendant having one named supporter. We can all appreciate that there will be circumstances in which a defendant or a complainant may feel vulnerable if they are in the position on their own.

I do not have any particular objections to this, but I want to test out whether this is just to provide a level of catch-all or whether it is driven by practical issues with numbers. Obviously, there is a specific reference to either slavery or compulsory labour outside a trafficking situation. Has that been happening in practice or is it simply to cover scenarios beyond trafficking?

Ms Ferguson: Exclusion is in relation to serious sexual offences.

Mr Weir: Sorry, I am talking about two separate issues.

Mr Grzymek: We are moving onto trafficking.

Mr Weir: I am moving onto the trafficking issue.

Ms Ferguson: Sorry. I beg your pardon.

Mr Weir: For once, an MLA's speed of movement has gone beyond that. No, it has nothing to do with the issue of exclusion. On the broader modern slavery issue, there is provision for where there is slavery or compulsory labour outside or beyond victims of trafficking. I can understand that. I have no objection if that is on the basis of simply saying that this is a catch-all situation to make sure that nothing falls outside the scope of it. Is it also to tackle a current live and practical issue? Are we getting many cases there is proof of what is effectively modern slavery and compulsory labour beyond what is happening in a trafficking situation?

Mr Grzymek: I will refer you to one of my colleagues on StarLeaf on the basis that they will have the expertise on that aspect of the Bill. I suspect that it is to make sure that we cover the ground. Alison, do you or Ronnie want to pick this up?

Ms Alison Redmond (Department of Justice): This change is really just to put into practice the policy that is already in place. As set out in the legislation, we have support for victims of human trafficking, but, in practice, we extend that support to victims of modern slavery where there is no element of trafficking. That was the result of a policy announcement by the then Minister in 2016. This simply puts that practice on a statutory footing. Most cases that we deal with involve an element of trafficking, and this is just a way to provide reassurance that anybody who falls under the modern slavery umbrella is entitled to support provided by the Department under its support contract.

Mr Weir: OK, thank you.

The Chairperson (Mr Storey): I welcome Alison and Ronnie; it is good to see you. Apologies for not welcoming you at the start, but you are welcome to the Justice Committee.

Mr Ronnie Pedlow (Department of Justice): Thanks very much.

Miss Woods: Thank you for the briefing. Obviously, this is a different Bill from the one that we originally expected, but it is important that we have it.

Chair, if you will oblige me, I have a number of questions on clause 1 and the creation of the new sexual offences of upskirting and downblousing in it. From the way that it is worded, certain criteria and purposes must be met: obtaining sexual gratification or humiliating, alarming or distressing the victim. We have the act itself — the downblousing and upskirting — being criminalised where the purpose is sexual gratification, with a recognition of the impact of such an act on the victim. With regard to the purposes, were any other motivations considered by the Department in creating the offence, aside from sexual gratification or the impact on the victim?

Mr Grzymek: I will pass over to Lorraine in a second, but I will start. We have both taken on board the practice that has been developed in other countries to see what works practically. We also want to strike a careful balance between what is an offence and what is not, because there may be circumstances where we would not want to criminalise people inappropriately where there has not been malicious intent. It was a question of trying to get the right balance, but no doubt Lorraine can give you much more detail than I can.

Ms Ferguson: Thank you very much, Brian. As Brian said, we took into account experience and legislation in other jurisdictions. As it stands, there is no offence of upskirting in Northern Ireland, and there is very much a gap in the law there. The offence of downblousing will be unique to Northern Ireland in the UK context, although there is a downblousing offence in the Republic of Ireland.

The motivations of sexual gratification and the intent to cause alarm and distress simply were considered because we wanted to separate those serious offenders who act for the purpose of sexual gratification. Not everyone who commits the offence will have sexual gratification in mind, and it was important that the two motivations were there for that reason.

If I understand your question correctly, on sexual gratification we have legislated in line with the approach taken in England and Wales. Although we considered everything in the round, and legislation elsewhere, our framework is closest to the model in England and Wales. I assure you that we considered it from a policy perspective to ensure that it fulfilled our policy needs; it was not a case of just copying or mirroring the model without thinking about it. As I said, the two motivations are important, because they separate a childish prank from an act by someone whose clear intent is to do something more malign. I hope that that answers your question.

Miss Woods: Absolutely. From looking at other jurisdictions, particularly England and Wales, it has been noted that in their experience there are gaps, loopholes and areas that could be enhanced by further amendments. Has that been considered?

Ms Ferguson: The short answer is that, no, we had not considered that.

Mr Grzymek: We have been in conversation with our colleagues in England. There is always the dilemma of putting legislation in place or waiting until you get a perfect model. I know that some additional work may be going ahead, and it may well be that that can be broadened downstream, but, in fact, the Minister is very keen that this be moved forward. She did not want us to hold fire until the next mandate and beyond to make these offences. We see a present and immediate issue with people committing this sort of offence in those areas. Any legislation that we ever develop can always be improved. The question is this: when do you strike? The Minister was keen that we move quickly on this one. As there are developments in England or other parts of the world, we can, no doubt, refine this, but I suspect that what we are doing covers a great deal of the ground, so I would be very nervous about waiting. Sometimes, the best is the enemy of the good. In this case, the Minister wanted to move reasonably quickly to get a number of these offences included in legislation.

Ms Ferguson: We will certainly look into that, if that gives you some reassurance.

Mr Grzymek: That review may extend well beyond this legislation. The advantage of having legislation is that you start to find where there are gaps. Where we can steal a march and build on that learning to improve our proposal, we will do so, but it is not yet at that stage elsewhere, and we did not want to delay on the basis of perhaps getting a marginal improvement but at the cost of considerable time.

Miss Woods: OK. Thank you. That is grand.

This might be one for the PPS, but how is the sexual gratification offence proved in general? In this case, what tests are intended to be put in place that will prove that upskirting or downblousing was done for the purposes of sexual gratification? Do you think that there is any danger that the burden of proof will be too much for proving sexual gratification, as opposed to proving humiliation and the impact of alarm or distress on the victim? As you say, it is an important distinction.

Mr Grzymek: Ultimately, regarding the policy, that is not a question that we can answer. The police and others will apply their own knowledge base and skills, but, as a relative layman in the Department of Justice, my assumption is that, where someone is doing this and putting it on to a website for the titillation of some groups of people who are interested in sexual activities, that would be very clear-cut. We recognise that, amongst people who may well be guilty of such an offence, there may be a number of people who just do something stupid, but you could also have some quite nasty people who are doing it to degrade women and to further their own sexual proclivities. Where they are doing that and where there is evidence that it is being shared, distributed or used in a way that is perverse and objectionable, that would clearly provide the capacity to have those people put on the sex offenders register as well. That is an important distinction.

At other times, you could conceive of a situation in which an individual has something against another individual and does this just to humiliate the person, and there may be no sexual content whatsoever in that. That does not mean that somebody else might not see it and then use it as sexual content, but the intention was to pay someone back, to get revenge or whatever. In that area, it is quite different, and you would not put the person on the sex offenders register. You would have a different concern about that person. I would have thought that the broad categories are relatively clear-cut, but, when it comes to the fine distinctions and how you determine whether there is an intention of sexual gratification, we would have to leave it the police and others to look at the circumstances of the situation, and they would make a determination on the basis of the evidence.

Miss Woods: Thank you.

Mr Grzymek: Sorry. I did not answer your question, but I hope that I gave you a sense of how complex this is and how you are very much relying on the circumstances.

Miss Woods: Absolutely. I appreciate that it is incredibly complex. It is important that the two purposes are in there. I do not think that everything is covered.

You touched on how people could use downblousing and upskirting to humiliate or blackmail a person but also as part of coercive control. The Committee has recently finished long deliberations on domestic abuse and coercive control. Do you think that using upskirting and downblousing as a form of domestic abuse or as any other form of abuse and coercion is covered enough in the clause?

Mr Grzymek: The short answer is that it is one component of a suite of legislation that the Minister either has introduced or is introducing. The Committee has already left its mark on the Domestic Abuse and Civil Proceedings Bill, which is now in law. The Protection from Stalking Bill is with the Committee at the moment, and that is another component. Elements of the Justice (Sexual Offences and Trafficking Victims) Bill are a third component. By taking those together, the Minister and the Assembly will be substantially strengthening the protections primarily but not exclusively for women in those situations. You are quite right: upskirting and downblousing can easily be linked to stalking or to domestic violence or abuse. They can certainly be a component of coercive control. Those things are all interlinked. All those pieces of legislation taken together will substantially strengthen the protection of victims in Northern Ireland.

Ms Ferguson: I will add that we are proposing a legislative provision at Consideration Stage to extend the scope of revenge pornography to include threats. Often, revenge pornography is an element of coercive control in a partner relationship. That provision will strengthen the Bill further.

Miss Woods: Thank you very much. Finally, on that clause, does downblousing cover breastfeeding?

Ms Ferguson: If the breast were not ordinarily visible, it would be an offence for someone to observe or record it, but I hope that good sense will prevail in the relevant authorities' considerations when applying the legislation.

Miss Woods: The Bill's current wording does not explicitly cover breastfeeding.

Ms Ferguson: Yes, but the way in which it is worded covers what would ordinarily be visible. For example, if someone had on a low-cut top, it would not be fair to suggest that there is an offence, if it is already exposed. It is where it is not ordinarily exposed and is done without a person's consent.

Mr Grzymek: It is about gaining access to images that would not otherwise be readily available. If a woman is feeding a child and the breast is exposed, it is not really seen as that. I do not know. I am not sure that it would fit into the category of being sexualised or degrading or fit with the principles behind the Bill. The aim is to capture in the Bill instances in which people are trying to gain access to images that would otherwise be unavailable. Clearly, breastfeeding is a natural and normal process, and, as such, it is not as private, if you like. Campaigners argue that it is the right of all women to breastfeed anywhere that is appropriate when the child is hungry. It would therefore seem to be a different category of situation.

Ms Ferguson: Everything will be considered on a case-by-case basis as well, depending on the circumstances of the case and how people feel, but I agree with Brian.

Mr Grzymek: We recognise that you are aiming to criminalise behaviour where there is a sexualised dimension or a degrading situation. You also get certain pop stars gallivanting in fields in Northern Ireland, waving their bits quite happily for photographs, and that clearly is not against the law. Again, on beaches and other areas where people are more exposed, taking photographs in a normal situation would not be against the law. We are trying to capture the situation in which people try to access images that would otherwise be unavailable and are doing so for an essentially malevolent purpose. That is what we are trying to capture.

Miss Woods: Thank you. To go back my original comments on the purpose, you will find that the Bill perhaps does not encompass everything that we need to look at. For example, the motivations may not capture all instances. No doubt, I will come back to this on Monday or during the deliberations.

Mr Grzymek: We look forward with interest to hearing what you want to add to our list.

Miss Woods: That is OK. Do not worry. You will definitely pick up on where I am going with this. [Laughter.]

Clause 7 is difficult for me to get my head around. Why is it in there? As I read and understand it, it sets out some sort of protection for online service providers from any legal responsibility for illegal publication, where the providers are a conduit for the information. Will you explain a wee bit more about what that is about and why it is included? What kinds of websites and platforms are meant? Is that not getting into reserved territory?

Ms Ferguson: Having liaised with the UK Government following Brexit, we had to include that particular provision. It relates to a particular directive and to e-commerce regulations that encourage such free movement around the European area. Given Brexit, defences had to be included in our domestic law to provide for those service providers, usually regarding the sale of goods and such things, whereby they would be liable under our domestic law, where they have a base here and are a service provider for other UK channels. Does that answer your question?

Miss Woods: No. Sorry, but I am still a wee bit confused. The clause is giving them protection for hosting illegal publications.

Ms Ferguson: It is not. It is to give them a defence, if it is a case of conduit and they do not in any way know about it. If it is the case that they do know about it, however, that is a different story. Where they are not aware of it, they can use that defence.

Miss Woods: OK.

Mr Grzymek: There has to be —.

Ms Ferguson: It had to be —. Sorry.

Mr Grzymek: To commit an offence, you need to have an intention, and the clause is trying to pick up situations in which providers have acted inadvertently, where something has happened that they are not aware of and could not reasonably be aware of. Consequently, you cannot find them guilty of an offence, as they were not in a position to make a decision to commit an offence. That is the issue.

You are right to say that that area is normally reserved. This is very much a tidying-up exercise to make sure that we stay within the appropriate law.

Ms Ferguson: Yes. It was included on the advice of the UK Government to our lawyers, who also liaised with their lawyers on the matter. The particular provision has been put in because this is a new piece. It is being put into the Sexual Offences (Amendment) Act 1992, because that predated the directive. It therefore had to be put in in that guise. It is in two areas of the Bill.

Mr Grzymek: More broadly, the Government nationally are looking at putting in additional protections that relate to service providers. That is a reserved matter, and they take the lead, so our aim is not to try to solve all the problems of the use of the internet but rather to make sure that we stay within the law in a narrow and particular area.

Miss Woods: OK. Thank you. Finally, clause 10 is about the "relevant person" being able to apply to the Magistrates' Court to disapply or modify the reporting restrictions in clause 8. Within that, there is mention of a "family member" after a suspect's death. Can you tell me what is meant by "family member"? Does that include in-laws and cousins?

Ms Ferguson: It is definitely prescribed. I am trying to find where "family member" is prescribed. It is in subsection (9). Clause 10(9) states:

and so on.

Miss Woods: Does that include in-laws and cousins?

Ms Ferguson: We were trying to be as proportionate as we could, taking into account people who have children and people who perhaps do not have children, given the particular time period that we are talking about. We were trying to be as inclusive as possible, and we will look to the domestic abuse offence in that regard as well. That particular specification goes wider than the, I think, 1999 Act that we are amending. We have therefore tried to be as inclusive as possible.

Mr Grzymek: definition [Inaudible.]

Miss Woods: That is grand. Does the reference to a "personal representative" mean a legal representative only? What does that term mean practically?

Ms Ferguson: What was that? Sorry. I did not hear the question.

Mr Grzymek: It may be a legal representative and it may not. It is a personal representative, which is just what it states. That could be another family member, someone from a voluntary organisation or a lawyer.

Ms Ferguson: It is a legal advocate for that person who may know the person's wishes well.

Miss Woods: OK. I did not catch the first bit of that. There is some building work going on. I am not too sure where. Is it that the personal representative is whomever the person wants to be there?

Ms Ferguson: Whomever the person chooses. Yes, absolutely.

Mr Grzymek: It is someone who is nominated by the individual to represent their interests.

Miss Woods: Thank you. That is me. I could go on, but I am not going to. [Laughter.]

Mr Grzymek: Thank you.

Ms S Bradley: Thank you for the briefing so far. Some of my points have already been raised, so I will not labour them. I will follow on from what Rachel said about the new offence in clause 1. A clear distinction has been made today between what is a prank and what is sinister intention, and that is helpful.

I put on record that I am still not convinced about how the Bill, as it is written, will be helpful operationally. I wonder whether any consideration has been given to the possibility of including a reasonableness test. The Bill references the "intention" of the person, be that for sexual gratification or to humiliate, alarm or distress the person. Should something be in there about a reasonable person being able to come to that conclusion? Operationally, I do not fully see how this can work. I do not know whether the Department has any thoughts about that. Perhaps the Committee can explore that issue more. While they are here, anything that the officials would like to add about that would be helpful.

Mr Grzymek: Can you expand a bit on what you mean by a "reasonableness test"? A reasonableness test of what? That a photograph was taken with an image? That it was sexual? I am trying to clarify, when you say a test of reasonableness, where that would be applied.

Ms S Bradley: The fact that the image has been taken should be evidential. I can see how you can prove that that has happened, but how do you prove the intent? How do you prove that it was for sexual gratification? As has been suggested, it may be easier to prove that it was to humiliate or alarm, because an action may have been taken that creates evidence of that. I am not sure how you create evidence of its being for sexual gratification. Would it be appropriate to consider that a reasonable person could come to the conclusion that that was the intention for the image being taken?

Mr Weir: Sorry to interrupt for a wee second. I want to pick up on Sinéad's point about reasonableness. Does that not cut across burden of proof? Presumably, to prove the offence, the element of intent, as with other elements, would have to be beyond reasonable doubt, rather than —.

Mr Grzymek: It has to be beyond reasonable doubt.

Ms Ferguson: Yes.

Mr Weir: Perhaps we are —.

Ms Ferguson: Yes. That is correct.

Mr Grzymek: You may be trying to apply almost a double test. Look at the sequence: someone takes a photograph up someone's skirt and then publishes that photograph on a boy's thing of sexual images. That is seen by someone, and it is reported to the police. The police seize the camera and find evidence. They then seize his computer and find that the image has been widely sent round, possibly with accompanying comments that reinforce the message that the photograph was of a sexual nature. It would then go to the Public Prosecution Service, which would make a judgement call. When it is taking a decision about prosecution, it will say, "Is this something that is demonstrable and has a reasonable prospect of conviction?". When the case goes to court, the judge, or a judge and jury, will make a judgement call. The reasonableness of the evidence will be tested against the high standard of beyond reasonable doubt. I am not sure that interposing a test of reasonableness in that sort of area would be very easy to do or would add any value. For cases that go to court under a sexual motivation, the police will have to have gathered substantial evidence that they can stand over and with which the Public Prosecution Service has to be sufficiently happy in order to allow a prosecution to proceed. The judge will then apply that test of reasonableness as part of looking at the evidence.

I am a great fan of tests of reasonableness. You will find that there is one in the Protection from Stalking Bill. Where they are appropriate, they are very useful, but, in this situation, I suspect that it will all come down to the evidence that can be gathered and analysed. I expect the PPS, as part of its prosecutorial test, to look at the evidence and at the public-interest test, but I suspect that there is a test of reasonableness that it applies as part of the process anyway.

Ms Ferguson: It is important that that be proven. It will then be a sexual offence for the purposes of notification requirements, and public protection arrangements will be followed through. As Brian said, it will be done on a case-by-case basis and will depend on all the evidence gathered. It is certainly a question that we can put to the PPS, however. I know that it will probably be answering your call to evidence.

Mr Grzymek: If you are talking about tests of reasonableness, you are perhaps concerned not about people who are going to end up in the courts but about those at the other end: people who are on the margin and for whom a reasonable person would say, "Well, that was an innocent act". If that is the case, I would have thought that the police will want to be very sure of the evidence before they put forward something. Clearly, there are innocent acts. One could accidentally, not intentionally, have taken a photograph. One could be taking a photograph with consent. There may be circumstances in which a photograph is taken that has no malicious or sexual intent whatsoever. The Bill's aim is not to criminalise people. Rather, it is to ensure that, where people have malicious intent, whether that be to degrade or abuse the person or sexual gratification, we want them to be prosecuted, and, to do that, evidence has to be available and sufficiently strong for the case to go to court and for a conviction to be secured.

Ms S Bradley: Thank you. I take your point about its being weighted against other things. Look at the stalking legislation, for example. If a phone is confiscated and the police analyse it and an image comes to light, that image may be for personal use only and not for sharing, in which case sexual gratification would be harder to prove. In a framework around stalking, however, it would be reasonable for somebody to assume that that is why the person had the image on the phone. Moreover, it is not "and/or" but two separate things. It could be an offence just to obtain the image for sexual gratification or to humiliate, alarm or distress. Would that be a fair assumption?

Ms Ferguson: Yes.

Mr Grzymek: I said earlier that the Minister has put forward two or three separate bits of legislation that, when taken together, provide a good degree of protection. It could well be that the image was not particularly taken to humiliate, and it may not have been taken for sexual gratification. It could be part of stalking, but, at the same time, if the police found the image on the phone and there had been a stalking complaint, that could well provide evidence for the stalking offence. It might not score against upskirting — it might not meet the criteria — but it could be part of coercive control. It could be part of obsessive behaviour, which the Protection from Stalking Bill is seeking to cover. In that situation, if there is no proof at all that the intent was sexual gratification or humiliation, but, at the same time, it is part of a pattern of behaviour that is consistent with stalking, the person can be prosecuted under that legislation once it is enacted.

Ms Ferguson: If the image is for sexual gratification, there is no doubt that the person in the image is also humiliated. This is about separating the two motivations and what the person is doing, with sexual gratification being the more serious of the two when it comes to notification requirements and so on.

Ms S Bradley: Thank you. I appreciate your feedback. I will not labour the point, but there is perhaps a piece of work still to be done there.

The Chairperson (Mr Storey): I apologise if this has been covered, Brian, but to conclude — unless members have any other questions — what has the Minister agreed about extending abuse of the position of trust?

Mr Grzymek: What we will do in the Bill is extend the abuse of trust legislation to cover sporting and religious-type activities. We are also proposing to include a clause that gives power to extend beyond those two areas. Had we had more time to go through that policy development in greater detail, I would have been interested in extending it beyond those two areas. Realistically, however, we did not have the underpinning evidence to do so.

There is clear evidence of support from the sporting and religious communities for this particular legislation, alongside support from the NSPCC and other victims' groups. We are focusing on sporting and religious circumstances but have the capacity to extend into other areas as we gain sufficient evidence and understanding to suggest that doing so would be helpful.

The two biggest areas of concern were sports and religious organisations. In future, there may be other areas that we might pick up on, but, since the Minister was keen to bring forward the legislation now, because of various groups' lobbying and, indeed, because MLAs and others had expressed their own concerns, we have done so sooner than I said that we would when I was previously before the Committee. The consequence of that is that we have not had time to go through the very detailed process that we would normally have followed in policy development. At this stage, we do not have sufficient evidence to go beyond where we have gone.

The Chairperson (Mr Storey): Do you intend for the designation of religious organisations to include uniformed organisations?

Mr Grzymek: Where they have a religious background, yes. There are some uniformed organisations that have no religious association.

Ms Ferguson: It is more aligned to faith: the Churches and so on. I will add that it is important — it is in this policy more generally — that we apply a degree of proportionality to how we move on it effectively and extend the scope. The policy is about balancing a person's needs. It is about protecting the ability of a person who is vulnerable to engage in a healthy, consensual relationship. If we were to extend it too far, there would be a danger that we would increase the age of consent to sex here by stealth. There was an issue around that, so it is about ensuring that the right balance is struck. Moreover, as Brian said, we would need more engagement and consultation around the areas at which we are not looking at this stage.

The Chairperson (Mr Storey): Thank you. I really appreciate that clarification. Members have no other questions. I thank Brian and Lorraine for being here in person. I also thank Alison and Ronnie. I assure them that we will give them a more challenging time when they next come to the Committee. Ronnie got off very lightly.

Mr Pedlow: Thank you, Chair. [Laughter.]

The Chairperson (Mr Storey): Thank you. The Second Stage of the Bill is being debated on Tuesday.

Mr Grzymek: It is fairly soon now.

Ms Ferguson: It is on Monday, is it not?

The Chairperson (Mr Storey): It is progressing. Thank you very much.

Mr Grzymek: It may actually be Monday.

The Chairperson (Mr Storey): I am sorry. It is on Monday, Thank you for that correction.

Mr Grzymek: We look forward to a fruitful association in the coming months.

The Chairperson (Mr Storey): Thank you very much.