Official Report: Minutes of Evidence

The Chairperson (Mr Storey): I welcome the Department's representatives to the Committee. Thank you for taking the time to join us in person. Before you begin your briefing, I advise you that the session is being recorded, and a Hansard transcript will be published on the Committee web page.

Mr Brian Grzymek (Department of Justice): Thank you very much, Mr Chairman. We are very pleased to be here today to answer any questions concerning the Bill. When I was last here to discuss the matter, we had, I think, a very good session. We covered quite a wide range of the Bill's provisions and provided some detail. Subsequent to that, we sent you quite a full list of responses to questions that you had sent to the Department. Therefore, today, I am here to give you an opportunity to pick up on any points that we discussed at our last meeting or that have come up since. We are very much in your hands, Mr Chairman.

The Chairperson (Mr Storey): Thank you for those comments.

I advise members that we will go through the clauses in turn, as set out in the summary of evidence table, grouping them where appropriate or where a few issues have been raised. Officials will then be given the opportunity to make brief remarks, including any additional information that they want to draw to the Committee's attention. This will be information not covered in the written responses at the start of a particular clause or group of clauses. There will be an opportunity for members to ask questions and explore issues before we move on to the next clause. Once all clauses have been covered, there will be an opportunity to discuss any other issues and proposals that have been raised. Unless members want to make any initial comments, we will proceed.

Clause 1 is "Offence of stalking". Brian, do you want to make any brief remarks on clause 1?

Mr Grzymek: Essentially, clause 1 is very much about defining the offence. It is very clear from what happened prior to the Bill that there has been a great lack of clarity on what constitutes stalking. The existing harassment legislation has been clearly identified as being deficient in picking up some aspects of stalking. The police and other agencies advised us that it was not sufficient, and various victims' groups made similar comments. Therefore, clause 1 is very much about putting down a definition — to the degree that we can define stalking. I recognise that any definition is problematic. When you draw up a list, there is always a risk that you leave something out or that some novel or not-previously-experienced behaviour emerges. On that basis, we included, at the very end of the list of typical actions that represent inappropriate conduct:

That is in the form of a catch-all, which means that, if any new behaviours come along, or if any behaviours are not appropriately covered in our illustrative list, there is the capacity to pick those up. I am happy to take any additional comments. Our aim was to build on the experiences of other jurisdictions in drawing together this clause. We believe that it adequately covers the offence of stalking.

The Chairperson (Mr Storey): Do members have any questions on clause 1?

Ms Ennis: We are going through this clause by clause, Chair, is that right?

The Chairperson (Mr Storey): Yes, we are trying to work through them in a logical way.

Ms Ennis: This probably leads on to clause 2, "Offence of threatening or abusive behaviour", which includes "reckless" as a component of the offence. However, that is not replicated in clause 1, "Offence of stalking". What is the difference? Why should "reckless" not be included in both offences?

I have another question that leads on from that. Clause 1 describes a course of conduct that:

Questions have been raised about what "fear" means. Has that been considered by the Department? Might "fear" be too broad a term? It is probably subjective for each individual. A journalist, for example, might be fearful of a truthful story coming out.

Mr Grzymek: In defining stalking, our view was that reckless behaviour would be covered under clause 1, which refers to behaviour that:

It is about the impact of the behaviour rather than trying to define the purpose behind it. Clearly, if someone is grossly reckless and undertakes a course of action that causes someone fear or distress, even though they have not deliberately set out to stalk, it is, to all intents and purposes, the equivalent of stalking.

When it comes to defining fear, distress, substantial distress or alarm, we used the normal definitions of those words from an English dictionary. Ultimately, of course, it would be for a court to determine whether it was an offence.

Clearly, we are not trying to pick up people's accidental behaviour. We can see circumstances in which someone might follow a course of action with no intent to cause fear or distress but it may have that effect because of a misinterpretation or whatever else. In that circumstance, we would expect that to be eliminated. Certainly, where the person had, either deliberately or through gross recklessness, generated essentially damaging behaviour to a third party, it would ultimately be for the court to determine whether that was constituted.

We are always happy to pick up better words than the ones that we used. If you can suggest some, we will certainly give them great thought. However, in fact, it is based on what has been developed in other jurisdictions of the UK and beyond. On that basis, we struggled to find better words. If you can offer better words, we would, of course, be delighted —.

Ms Ennis: I will get my thesaurus out and have a think. That is fine. That is fair enough.

The Chairperson (Mr Storey): There are no other questions on clause 1.

Clause 2 is the "Offence of threatening or abusive behaviour". One of the things that I would ask for there is clarity on the assertion that there is an implied reasonable person test in the legislation.

Mr Grzymek: Ultimately, I suppose, we saw this one as a lesser offence, but we are also trying to differentiate between when action could, either deliberately or through gross recklessness, cause damage to a second or third party but may not necessarily be a course of action. We were trying to recognise that you have to demonstrate a pattern for stalking. If that pattern is not demonstrated but, at the same time, there is clearly a deliberate or grossly reckless action that damages a third party, it would give you the capacity to pick that up.

As to where a reasonable person comes in, ultimately, we see the court determining whether it is an offence. The aim here is that the person:

that is fairly clear to understand — and:

— that is a test for reasonableness — and:

which means that he or she has either deliberately undertaken that course of action with the intention of causing fear and alarm or has been grossly reckless and fear and alarm have been caused.

We have clearly identified the defences that could be put in place, but we still see it as an additional arrow in the quiver, insofar as it allows us to pick up the sorts of, potentially serious, behaviours that are damaging to individuals but that would not necessarily meet the threshold of being a course of conduct.

I hope that I answered your question, but I appreciate that it is quite complex.

The Chairperson (Mr Storey): We, obviously, have the Scottish legislation. Under that legislation, do we have any sense of how many cases have been taken under the offence of threatening and abusive behaviour rather than stalking?

Mr Grzymek: The definitions are slightly different. I know that there were some suggestions that the Scots used some of the offences more widely than, perhaps, we might. Barbara, I do not know whether you have looked at that in particular.

Ms Barbara Compston (Department of Justice): It is a section 38 offence in Scotland and, on occasion, it has been used for domestic abuse offences. It has also been used for stalking offences that do not meet the threshold. Because it provides for a single act, a prosecution can be made under a single act.

Again, it will be for the court and the Public Prosecution Service (PPS) to determine whether those offences can be made out. At the end of the day, the Bill focuses on the victim and the impact on the victim when the police take a statement. That should also go forward to the PPS, and it is its decision in the court.

Mr Grzymek: It is clear that it is early days for the practice, even in other jurisdictions.

The Chairperson (Mr Storey): Yes.

Mr Grzymek: It will evolve. We are looking at other jurisdictions in the UK to see how we can learn from their experiences. I know that the police are looking at some of their experiences of training and other practices and procedures that they have developed. As I think I mentioned at the last Committee meeting that I attended, it is fair to say that this is a cohort of Acts that collectively pick up on some behaviours. For example, the Committee has already seen the Domestic Abuse Act 2021, which has passed into law. That clearly picks up on coercive behaviour. This one picks up on stalking and the impact of that on the victim. There is the also the Justice (Sexual Offences and Trafficking Victims) Bill, which you are yet to consider, that picks up on some other aspects. Taking those together, the Minister is trying to produce a package of Bills that provides much greater protection for victims and much greater clarity of what constitutes an offence. It is in that light that the clause was drafted.

The Chairperson (Mr Storey): Thank you. We will go to members.

Miss Woods: Thank you, Brian. I have one question, which is in relation to the use of the clause 2 offence of threatening or abusive behaviour. There was a debate on Tuesday — I believe that it was Tuesday, but time is running away from me — on the Second Stage of the private Member's Bill. That dealt with the weaknesses in the Protection from Harassment Order. Albeit this is a Protection from Stalking Bill, could clause 2 fill any loophole or be used as an alternative to conviction or prosecution under the harassment legislation?

Mr Grzymek: Victims' groups told us that the legislation around protection from harassment is deficient in a number of ways and that some behaviours that were damaging to them were not picked up within the definition of harassment because there was no physical threat of violence or whatever. I think that this Bill will complement the harassment legislation. It may be that, when police look at an offence, this Bill will give them another option. It is often the case that there is more than one choice for how you can take forward a prosecution against a particular act. When you have a single instance that causes fear and distress, this Bill focuses on the impact, whereas harassment legislation often focuses on the situation rather than the impact. This Bill will probably complement the harassment legislation and may well pick up some gaps in it. That is the case, is it not, Barbara?

Ms Compston: Yes. It can be an alternative offence.

Miss Woods: Can I just clarify that the alternative offence in clause 2 could be used for other acts bar stalking?

Mr Grzymek: It is in a stalking Bill, so our focus is obviously on stalking, but it is very clear that the focus of that clause is on an offence of threatening or abusive behaviour. That can be a single event. "Threatening and abusive behaviour" is quite a broad term. When a person acts with the intention of causing a reasonable person to suffer fear or alarm, or if they are wholly reckless in that way, then the law could clearly apply.

Miss Woods: Thank you.

Ms S Bradley: Thank you, Chair. I appreciate that clarity on the harassment legislation. I was going to ask about that, but I will pick up on a further point. I appreciate that you are talking about a whole suite of legislation, but all of that seems to look at a pattern of behaviour, whereas the new offence of "threatening or abusive behaviour" in clause 2 looks exclusively at a single event. We talked about online behaviours. Is it likely that one act that appears to be threatening or abusive will captured under clause 2? If so, do you anticipate that the scope of the Bill will be quite wide, and will it be deliverable operationally?

Mr Grzymek: The Bill makes it clear that the focus is on the impact on the victim. Although we do not specifically say "online" at any point, we certainly note the fact that it is the actions that result in fear, alarm or distress. If someone operates online to stalk or carry out threatening or abusive behaviour, they, potentially, will be picked up by the legislation. I am very conscious that online abuse is often a tactic in stalking. Having spoken to quite a number of stalking victims, I know that it is not at all unusual that the person who is stalking them uses online mechanisms to abuse them directly or indirectly. I spoke to an individual, a few years back, whose stalker hacked in to her place of work's computer and inserted allegations, which were sent out to customers, that stated that that person was a paedophile. That was part of the harassment and stalking behaviour. Equally, that same person found that the individual had a number of false accounts and had created accounts in the victim's own name and put out damaging material. We recognise that the internet is often used as a vehicle for stalking. Clearly, whether it is a pattern of behaviour such as that, a one-off event or a series of them, we want to capture it. It is very much about the impact on the victim.

Ms S Bradley: I appreciate that, but you referred to a series of one-off events.

Mr Grzymek: It can be a one-off event, but it still has to come down to the question of causing fear, alarm or serious distress. Let us face it: you, as a politician, probably get quite abusive emails all the time. It is par for the course, so that would not necessarily cause you fear or distress. Equally, you could be a very vulnerable individual, and someone could use a single message that is really quite destructive to you because of your vulnerabilities or situation. Those all have to be seen in the context in which the offence potentially occurs. We are not saying that anybody who ever disagrees with you is committing a crime; we are talking about where someone intentionally or through gross recklessness uses the internet, or language or behaviour, in a one-off event that is of such a force that it causes you fear, alarm and serious distress. It is not about censorship; it is about recognising that there are circumstances in which a single event can have a catastrophic effect on an individual. We want to differentiate between that and more normal banter or the toing and froing of normal discourse, which could sometimes include insults or comments that we do not like.

Ms S Bradley: I do not disagree with you, Brian. I get the distinction that needs to be made in that regard. I am struggling with the terms in this stalking Bill: the stalking is more of a repetitive type of behaviour, but it also refers to a second event as being a one-off. The flow of that, operationally, in terms of how that might run through, is a little bit more challenging. I get that you could build up that pattern and see stalking, but the second offence seems to catch an awful lot. It deviates from what my understanding of stalking is.

Mr Grzymek: It will come down to the circumstances, the situation and the impact. For example, if I were to send you flowers, that would be a surprise. I am unlikely to send you flowers, but who knows? If I did that once, you would be flattered or puzzled. If I did it twice, you would begin to wonder. If I did it every day for a year, at a certain point, you would start to get very nervous about the fact that I am obsessing and sending you flowers. The first instance would not cause you fear, alarm or distress. If I kept doing it, month after month, at a certain point, you would start to get seriously freaked out by it. If an individual sends someone flowers on a one-off basis, that would not constitute an offence. It has to be a form of behaviour that is sufficient to cause fear, alarm or distress. That is a reasonably high threshold.

In stalking, it is about a pattern of behaviour. Given that there has to be a pattern, the stalking behaviour may involve innocuous behaviours taken to excess that, at a certain point, become threatening and alarming. A one-off instance of stalking behaviour would not necessarily trigger this reaction. It is about a level of behaviour that is sufficient to impact on the victim and cause serious alarm, distress or fear. That is a reasonable threshold. If someone were to go to the police and say, "Somebody sent me flowers once. I'm distressed", that probably would not get very far. However, if someone were to send them a single message that was in some way threatening or seriously abusive and made the person fear for their life or the welfare of their family, that would be a different matter. It is therefore about the level of the threat and its impact.

Ms S Bradley: Thank you, Brian. I will listen intently as we go further on this.

The Chairperson (Mr Storey): Do members have any other questions about clause 2?

Miss Woods: Chair, may I clarify something with Brian? Does person A commit an offence if clause 2(1)(a), (b) and (c) are all met?

Mr Grzymek: Yes. It is about the threatening or abusive behaviour, under paragraph (a); the fact that it causes a reasonable person to suffer fear or alarm, under paragraph (b), for which a certain threshold that a third-party would recognise has to be met; and the fact that it is intentional or grossly reckless, under paragraph (c). Those three components, taken together, mean —.

Miss Woods: Thank you for clarifying. It is not one or the other but all three: the intent plus the behaviour and the impact on B.

Mr Grzymek: Yes.

Miss Woods: Thank you.

The Chairperson (Mr Storey): If there are no other questions on clause 2, we will move to clause 3, which deals with special measures directions. Brian, can you clarify how the Department will ensure that witnesses and victims or their representatives are aware that they may be able to avail themselves of special measures?

Mr Grzymek: The last time that I was at the Committee to talk about stalking, Rachel and other members noted the importance of having a public awareness mechanism. That is certainly one of the elements that we see as being important. Given that this is new legislation, it important that the Department and our agencies advertise and promote it among the legal profession and the wider public. We recognise that it is novel legislation. It is therefore important that people understand its extent and scope.

On the special measures, we recognise that, as in other areas, there will be people who require special measures because of their vulnerabilities, age or other circumstance. Those measures will ensure that victims are given the appropriate support, are put through the system in the appropriate way and are facilitated to give evidence in a safe and secure way.

One element of that is not having the perpetrator cross-examining them, because we recognise that some perpetrators try to use the law as part of the stalking. We know of circumstances where perpetrators of stalking have counter-sued or counterclaimed against victims as part of the whole process of their obsessively attacking, following or engaging with the victim.

The availability of special measures is important in stalking, because we are often talking about vulnerable individuals and individuals who, by the time that they come to the police or other agencies, have been seriously damaged by the process of stalking and, as such, need additional protection and support.

The Chairperson (Mr Storey): Do you envisage any set of circumstances in which special measures might not be made available?

Mr Grzymek: I have spoken to some victims who have been damaged. Indeed, the Minister and I met a victim a few months ago. One victim and a member of her family came to see the Minister. That person had clearly been seriously affected by stalking, but she was determined that her case would be dealt with properly and would be an example to others, so she was very supportive of the Minister putting forward the legislation. Stalking is predominantly, but not exclusively, against women. I can see some victims with the appropriate strength of character coming forward and not needing special measures, but it would be addressed on a case-by-case basis. Of course, children will always have special measures. Do you have anything to add, Barbara, or have I covered the ground?

Ms Compston: You have covered it.

Mr Andrew Laverty (Department of Justice): I can add a comment, Chair, that will hopefully reassure you. The eligibility for special measures is automatic, but the person does not have to take them. A person may not be minded to avail themselves of that assistance, but the offer of assistance is certainly automatic in the first place.

The Chairperson (Mr Storey): Family court rules currently enable the court to extend special measures to civil proceedings, such as contact rules for divorce hearings. Do you see any issue arising as a result of those two elements still being allowed to work in conjunction with each other?

Mr Grzymek: There are some sensitivities in these areas; if you have children involved in a divorce and other things. Of course, stalking can be perpetrated by a former partner after a marriage has broken down; that person may, for whatever reason, become engaged in stalking behaviour. Clearly, there are sensitivities there. Where children are involved, the court's primary aim is the protection of the child. That will always be a marker against which any court proceedings are set.

The Chairperson (Mr Storey): Thank you.

Mr Newton: Chair, may I come in?

The Chairperson (Mr Storey): Yes, Robin. Apologies. I have difficult seeing round this screen. You might have to jump up and wave.

Mr Newton: It is on the point that was made by the gentleman across here. What about communication of the fact that the victim may be entitled to special measures? Whose responsibility is it to make the victim aware of that?

Mr Laverty: That will be part of the victim support services that are available to the victim.

Mr Newton: Will that be offered automatically?

Mr Laverty: Yes.

Mr Grzymek: The Public Prosecution Service's focus is on the law rather than necessarily on representing the victims, but I would also expect the Public Prosecution Service to make sure that victims understand. Indeed, I would expect the PPS to ascertain whether special measures are required, because, if they are automatic in law, the PPS will want to see whether the victim wants to avail themselves of that option.

Mr Newton: I am not sure whether I will get this right, but someone who is suffering harassment may not be aware that support or special measures would be made available to them in pursuing the matter.

Mr Grzymek: I expect that to be included in the training that is given to the police. I know that the Police Service is looking at how it will train on this. That will build on some of the good training that it has already given on domestic abuse and coercion, which, in some ways, are not dissimilar. I expect that, when the police are working with a victim, they would advise them of what is available. I would also expect Victim Support and, indeed, some of the other victims' groups to be supportive in that regard. I expect that there would be a number of routes through which advice would be given. As it will be in law, the expectation is that the statutory agencies would be aware of it, make themselves aware of it and ensure that victims are so informed.

Mr Newton: I presume that, because it is in law, the police training college would also build it into its training for new recruits and so on.

Mr Grzymek: Yes. The expectation is that, as for domestic abuse, for which there is quite a big programme of training — that is probably coming to an end — the police will gear themselves up to produce that training. From talking to the police at our stalking implementation oversight group, through which we are already planning for implementation, I know that they are seized of the need for training and are looking, with us, at the legislation and what will be required.

Mr Newton: Thank you.

The Chairperson (Mr Storey): OK. There are no other questions on clause 3. We move on to clause 4, which is "Alternative to conviction of the domestic abuse offence". Are there any questions on that clause?

Mr Grzymek: In essence, all that that clause does is to add the offences to the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021.

The Chairperson (Mr Storey): OK. Thank you. Clause 5 is "No right to claim trial by jury".

Mr Grzymek: That does what it says on the tin, really.

The Chairperson (Mr Storey): OK. We move on to clause 6, which is "Meaning of act associated with stalking and risk associated with stalking".

Mr Grzymek: This will tend to repeat what we said about the clauses in the first section. We recognise that stalking has a myriad of forms. There was a debate about whether we could provide a definition of stalking. Providing a definition is always problematic. We and other jurisdictions feel that it is more useful to provide a series of examples of behaviour that could constitute stalking conduct but, as in clause 6(2)(j), put in a test for what a reasonable person might consider to be stalking. As I said earlier, that is in recognition of the fact that, whenever you provide a list, you will always find someone who bypasses it. People who undertake stalking may be obsessive, but they are often manipulative as well. It is not beyond the bounds of possibility that, as soon as we produced a list, someone who wanted to perpetrate the act of stalking would find a way of bypassing it. This gives us a safeguard to make sure that, as necessary, we can consider and take into account any new behaviours that come along.

The Chairperson (Mr Storey): Can you clarify why stalking protection orders (SPOs) are civil orders?

Mr Grzymek: Right. We are jumping ahead a little bit, but that is not a problem.

The reason that stalking protection orders are civil orders is that they will quite often come in advance of a conviction. It may take time to go through the courts and convict someone as the law takes its course. A stalking prevention order is a mechanism that the police can apply for when their assessment is that there is a continuing or growing risk to an individual that cannot wait for a conviction. In essence, they are coming in as civil orders because they require a lower burden of proof and can be applied more quickly. The aim is very much focused on protecting the victim, mainly while the case is progressing.

A stalking protection order may be applied where there is a low level of behaviour and the police are trying to protect the individual and change the behaviour rather than generate a conviction. I think that that is correct. It gives some flexibility where you have lower levels of stalking behaviour that may or may not be easy to prosecute but, at the same time, are having an impact on the victim. The aim might well be to help the perpetrator to change their behaviour.

We recognise that some forms of stalking are very serious. A number of people, predominantly women but men too, are killed by stalkers every year. Equally, however, we know that stalking covers quite a wide range of behaviour. Our aim is not to criminalise all behaviour. The aim is to prevent the behaviour and prevent the impact on individuals. Where necessary, that should be through the full force of the law, but, if it is low-level behaviour — perhaps obsessive behaviour where the individual does not fully appreciate the impact that their behaviour is having on the victim — there may be other courses of action. Where we can prevent offences from occurring, such actions are important.

We need a range of tools to try to reduce the impact on victims. Depending on the nature and seriousness of the behaviour, we have the capacity to hand down sentences of up to 10 years, which is a very substantial sentence. At the other extreme, it might well be about helping the individual to modify their behaviour, to operate in a way that ensures that victims are not hurt and to go forward in a more normal manner.

The Chairperson (Mr Storey): Is there likely to be a difference in the threshold for a full SPO and that for an interim SPO?

Mr Grzymek: An interim SPO is applied where, because of the nature of the situation, you want to bring it into force very quickly. A full SPO can apply for two or more years and can be repeated. There could be circumstances where an individual has to have their behaviour moderated for a long period. Perhaps Barbara can refresh my memory, but I think that an interim one allows quick action to be taken where there is perceived to be an immediate and urgent need; is that correct?

Ms Compston: Yes. The interim SPO is there so that the police can come in quickly if they see that there is a risk. There would be a lower test for an interim SPO than there would be for a full SPO. The aim of the interim order is that it can come in quickly so that the police can add that protection straight away, as soon as they know that the victim needs support and protection. It will come in quicker while they go ahead with an application for the full order.

The Chairperson (Mr Storey): May I clarify a point? It is my understanding that the application for that comes from the police and not, as was the case previously or as in other elements of similar types of protections, from the victim or an individual.

Mr Grzymek: That is right.

The Chairperson (Mr Storey): Perhaps we will come back to that at the end, but it raises an issue from the police's perspective. Do they have to have a reasonable degree of evidence that would satisfy the court, albeit there will be a difference in the threshold for the interim order and the full one? Will they still have to have evidence — a threshold — that they can put before a court that justifies the interim SPO being put in place?

Mr Grzymek: They will, and the thresholds will be different for an interim SPO, a full SPO and a full criminal trial. This is about an assessment of risk. If the police assess that there is a risk of serious impact on the victim and it is such that they need to do something immediately, they can seek an interim order, which will have a lower threshold and apply for a shorter duration. If it is a civil offence, a lower standard of proof is required. That can then be followed up by an SPO or, indeed, a full case going to the court. For the police to take that course of action, they would have to have sufficient evidence in their risk assessment to determine that that is necessary. At that stage, the level of information might be insufficient to take a full SPO or a criminal case. It may well be that it takes time to gather the evidence. We are giving the police the capacity to act quickly if the police risk assessment is that there is a serious risk of harm.

The reason that it is the police that will do it is that we know that victims are often very vulnerable at this time. In England, research suggested that most victims will have endured 100 incidents before they come to the police. By and large, they do not come when the stalking is fairly new and fresh. First, they may think that it is their imagination and try to disregard it. They may then try to change their behaviour to avoid the stalking. They may then become increasingly worried and concerned about their safety or the safety of their family. You can you see how, often, by the time that they actually come to the police, they are in quite a state. If the police have early evidence that this is damaging to the individual, they may well feel that a civil remedy is necessary, rather than taking it to trial at court, which can take a considerable period and requires the gathering of a considerable amount of evidence. A civil remedy pending further action will give a degree of reassurance to victims. I think that that is very necessary.

Ms Dolan: I apologise for being late. I was at a rural women's event upstairs.

I have two questions. You say that SPOs will be civil orders, but the Department's response to the point raised by the PSNI on clause 6 is:

"It is likely" is very vague. Certainty is needed on this. Should that not be in the Bill?

Mr Grzymek: The dilemma on this one is that, as I said, if you are seeking, particularly, an interim order, that is because of your assessment of risk. Getting a criminal standard of proof takes time. Your dilemma will be to get to the point where you have sufficient evidence. If you were to keep the same standard of proof for a civil order as you would for a criminal case, it would be very hard to get your order to come in very quickly to protect the victim. That is the dilemma. We are not trying to fetter the judge. The judge will make a judgement based on what the police have given them. The police will not do this on the basis of the toss of a coin. They will do it on the basis that they have clear evidence and clear information from the victim that this behaviour is damaging.

The police may establish a pattern of behaviour that is not explicable in normal terms. You will notice that, in clause 1, there are options whereby an offence is not committed if the person has reasonable justification. If the police have established that a victim has been impacted by the behaviour and that there is no obvious reasonable justification for that behaviour, that gives them a degree of evidence. That evidence may fall short of what you require for beyond reasonable doubt. However, as it is a civil case and not a criminal conviction, a lower standard of proof would probably be required. I suspect that the judge will look to make sure that there is good evidence but not require the level of evidence that they would in a criminal case where they are going to convict.

Ms Dolan: The table of written evidence received outlines the Law Society's view:

The Department just "Noted" that. How is that being done?

Mr Grzymek: It is, in some ways, straightforward on rehabilitation. Rehabilitation applies only where you have a conviction. If you have a conviction under the legislation, the rehabilitation periods will apply as they would for any other offence. We noted it because it is a statement of the obvious. Where you have a conviction that goes beyond a certain length, a rehabilitation period applies. We are looking separately at rehabilitation periods. I suspect that we will come to Committee to talk about those this year or next year. If there is a criminal conviction, the rehabilitation applies as it is in law at the moment. It applies to this type of offence as it would to any other.

Andy is my expert on the implementation. Have I missed anything, Andy?

Mr Laverty: No, you have covered it well, Brian. There is an element of the Rehabilitation of Offenders legislation that also covers court orders. There is specific provision there. To follow up on what Brian said, there is a project to review the rehabilitation periods. We have a summary of responses document that we prepared for the Minister's consideration. We hope to bring that to you before the end of the calendar year for the Committee's consideration.

The Chairperson (Mr Storey): Rachel, you had some related questions. Do you want to ask those now?

Miss Woods: My questions relate to clause 8. I do not know if we are on that yet.

The Chairperson (Mr Storey): No, we will get there. I wanted to check that you have nothing on the stalking protection orders.

Miss Woods: My questions are in relation to stalking protection orders, but they are under clause 8.

The Chairperson (Mr Storey): That is all right. We will come to that in a moment or two. As no other members have questions on clause 6, we will move on.

Clause 7 is "Applications for orders". Brian, one of the things that comes up is whether the Bill, as it is drafted, provides the Chief Constable with the delegative authority to make an application for an SPO to the Magistrates' Court?

Mr Grzymek: The short answer is that the Bill allows the police — it says the Chief Constable but it will be the police — to make an application. We deliberately had it going through the police, because we felt that, as elsewhere, if it went through the victims, some of whom are quite damaged by the stage that they come to us, it could be an additional stress for them to go to the courts. We feel that, if the police, on the basis of their interviews with victims, form a view that there is a risk to the victim, having the police pick it up would be a surer and quicker way of doing it.

The Bill says "The Chief Constable may apply". We will write regulations that will set that out and, no doubt, allow the Chief Constable to delegate this power to his officers, much as what happens in other orders. We already have a stalking implementation oversight group that comprises the key justice agencies working together. As we move forward with drafting the regulations, we will bring in some of the victims' groups as well to make sure that any regulation that we put in place is appropriate and sufficient. That will cover, amongst other things, the Chief Constable's powers and how those will operate.

The Chairperson (Mr Storey): There is a resource issue, which is always a concern for Committees in looking at legislation. The police happen to be the example here, but it could be a Department or another organisation. The legislation will put those requirements on the police. What discussions have you had with the police about the implications of those requirements for resource, costs, training and staff? I suspect that, if the Chief Constable delegates the SPO power, it will probably be delegated to a Chief Inspector or another officer. That will take up their time. Sadly, we will probably be talking about a considerable number of these orders. You would hope that that would not be the case, but, with the rates of domestic abuse that we have and what goes on in society, there will be a requirement for these to be implemented, which is a sad reflection. What has been the nature of the discussions about how this will be implemented by the police?

Mr Grzymek: We have been working closely with the police on the legislation. Indeed, our stalking and implementation oversight group includes senior police representation. They were, therefore, quite aware that the Bill was being drafted and prepared. We, as a Department, have run a couple of major training events in the last two and half years. Obviously, COVID has been an added complication, but we have run some events and brought in the College of Policing, the Crown Prosecution Service (CPS) in England and others. Along with the police, we have identified and drawn on best practice, training materials and resources that have been available and developed nationally. We are not, therefore, starting with a blank sheet. We have been able to build on that. Indeed, the Department brought in a former policeman from Northern Ireland who had trained some of the police services in England on stalking. Again, that has been asset. That individual certainly helped us to clarify some of our thinking on the legislation and its implementation. On that front, we are working very closely with the police. As I say, the membership of that group will be expanded to include some of the victims' groups in order to make sure that it covers all the ground. That group has been enormously helpful.

We will do some additional work on the costings as we go along. We are very conscious that, at the moment, stalking has a cost, insofar as victims often go to the police. We know from what victims tell us that, although they may have quite a lot of engagement with the police, it is often not effective because the police find that the law is not sufficient for them to be able to prosecute. The existing costs will, hopefully, cease or be substituted for more effective action under the legislation. There may be costs. We will produce a business case as we get clarity on those costs. We have looked at what has happened in the UK. An SPO typically costs £800 or more. Clearly, in the context of the police budget, which makes up the vast majority of the Justice budget in Northern Ireland, the cost of stalking will not be substantial, but, at the same time, there will be a real cost. We will work with the police on that as we get clarity.

One of our problems at the moment is trying to quantify the volume of stalking that is likely to be captured by the legislation and, therefore, the costs that are associated with it. Given that we do not have an offence of stalking, a lot of the information is anecdotal. Even though people get some protection under harassment legislation, it is not sufficient, and where they get any relief under that legislation, the behaviour is not labelled as stalking. Therefore, although, in practice, the police are already spending some resource on that sort of behaviour, it is captured not as stalking but as harassment, and I am unable to differentiate between subclasses of harassment to determine what is being spent on stalking.

What I am telling you, Mr Chairman, is that we are alive to the fact that the measure will have resource implications. Some of those will be a result of transferring behaviours within the police. Some will have to be picked up, as is always the case, by the police. The police do not have a specific budget for each individual offence; they have a global budget that they apply, as appropriate, based on priorities and circumstances. If we found that disproportionate costs were arising for the police, we would build a business case to address them. That is not a simple answer. We are alive to it, and we are working with the police. If there is a need for us to bid for additional resource, we will do so.

The Chairperson (Mr Storey): It is further complicated by the fact that a business case does not exist, given the comments made by the permanent secretary of the Department of Finance about the costings of legislation. There will be different views on this question, depending on where you stand: are we putting the cart before the horse? Yes, the legislation is vitally important, but we are constructing it before the Department has done a business case. However, at that stage, we will have had no control over or assessment of it. I take the example that you have given, and it can only be an example, namely the figure of £800, which you say is the typical cost of an SPO. Where does the business case sit in that discussion and with the comments that the permanent secretary of the Department of Finance made?

Mr Grzymek: As I said, one of our dilemmas on this question is that stalking is already picked up by aspects of the law but not effectively. We are also aware that stalking will have a cost to the police, but, at the moment, because the law is not effective, that cost is probably nugatory. The initial cost of the legislation will be mainly in training, and, as such, the police have a training budget that is being used quite well for domestic abuse training. As that training comes to an end, that resource will become available. We will not implement SPOs at the point of Royal Assent but sometime later, both to allow for the training and to give us more time to work with the police on an appropriate business case.

In essence, our dilemma is whether we should wait for perfect information before we legislate in an area where we know damage is being done to victims. A lot of legislation moves much more slowly than it needs to. We recognise that there is an immediate need and that there are already resources going to the matter through a number of routes, but they are not producing an effective outcome. As we get clarity on the information, we will have the capacity. We are not expecting there to be a massive call on police time, but it will be a real call. We will work with the police to respond to the developing need.

At the moment, because we cannot define exactly what our expected number of stalking cases will be and over what timescale, it is very hard for me to say that we will produce a business case. I am not sure that is a reason for not taking action when we know that, at the moment, the law is not effective. The police are probably spending quite a lot of money in a nugatory manner and not producing a good outcome. Given that this is quite a narrow area, the police already have quite a bit of resource tied up in it, and we are getting poor outcomes. We are trying to move to a point where we can get a better outcome. I accept that, in an ideal world, I would much rather come to you and say, "This is going to result in 200 or 400 cases a year, or whatever it is, at a cost of x and, therefore, we are bidding for y", but we are not in that position. That is not an argument for not proceeding to legislate, because the need is clear. Certainly, we have the capacity to develop a business case as the Bill progresses. The Department and the Minister are giving it priority. This is one of a small number of Bills that the Minister has put forward in her 20 months of legislating.

In an ideal world, I would much prefer to follow the permanent secretary's approach, but, as we stand, we are fairly confident, and the police recognise that there is some resource that could be better applied and that is already there. Certainly, we will work with the police to identify any additional costs that may arise and to see how we can meet them.

Miss Woods: I have just two points on this. They are about the costs and the applications for the orders. Will the costs be borne by the Police Service of Northern Ireland budget alone?

Mr Grzymek: No. There will be some cost to the Public Prosecution Service as well, of course. Victim Support and other victims' groups may well have some costs. As you know, the Department pretty well fully funds Victim Support at the moment, and the expectation is that it will deploy the resource that we give it in the way that best meets the Department and the Minister's priorities. So a number of costs will come up; absolutely.

There will be a cost to courts, but, again, the courts are funded to discharge their duties by applying and enforcing the law. There will be a number of knock-on costs, most of which, I suspect, will be picked up within the normal tolerances. However, if a particular case is made by victims' groups or others that the level of demand was such that it was unpredictable and extraordinary, we would expect them to come to us and raise those issues with us. We would look at what they say and see what action is required.

Miss Woods: In a similar vein, given that the application for the orders will be done by the Chief Constable and the Police Service of Northern Ireland, why would there be a cost to the likes of Victim Support?

Mr Grzymek: There will not be for the application. I thought we were talking more generally about resourcing. I suspect that, once we have the legislation on stalking, the issue will be a bit more in the spotlight and some behaviours that would not have been recognised as stalking may well become recognised. Equally, a number of people who are victims of stalking will not have seen themselves as victims of stalking. It might well be that they could have benefited from Victim Support or other victims' groups giving them assistance. As typically happens in those sorts of cases, the victim may think it is their fault; they may feel that, in some way, they are responsible for the person's behaviour, and they do not see themselves as somebody who requires support from a victims' group. What I am saying more globally about resource is that the primary focus will be on policing, but it will have knock-on effects for the Public Prosecution Service, the Courts and Tribunals Service and, quite likely, I suspect, Victim Support and other agencies.

Miss Woods: Thanks, Brian. There is an estimated cost of around £800 per order, but the cost of the applications will be met by the PSNI, as it will apply for them.

Mr Grzymek: Sorry. We drifted into a broader discussion about resourcing, and I followed the drift. When it comes to the SPOs, the aim is that the police will be there, which will relieve the victim from having to apply themselves. The police will pick that up.

Miss Woods: Thank you. I would like to clarify one point. Is it only the Chief Constable/PSNI that can apply for the orders? Is it the case that there is no ability for victims to apply for those orders? It must be done by the police.

Mr Grzymek: We felt that the most sensible approach was to involve the police. We talked about whether you needed a criminal standard of evidence or whatever. We need some standard of risk assessment. It is not clear that a victim would be well placed to make an effective risk assessment. They will know that they are in fear, distress or alarm, but an important part of this — it is a civil offence — is that we have that risk assessment. Our assessment was that the police are probably best placed to make such an assessment. Indeed, a number of assessment tools that were developed nationally are already being used by the police for that purpose.

Miss Woods: Thank you. If I am a victim of stalking and I go to the police, can I request an SPO from the police? Or must the police make that decision?

Mr Grzymek: The police must make the decision because, ultimately, it is about risk assessment. Someone can say, "I think I need this and that". It may well be the case that they do, but, equally, we are conscious that that may not be the case in every instance. There has to be a risk assessment, because we need a standard of proof. It may not necessarily be the criminal standard because it is applied very quickly, but it has to be a robust and appropriate risk assessment that the police can stand over and that a judge can take as serious. I do not think that victims are well placed to make their own risk assessments.

Miss Woods: OK. Finally, on the applications, given that the SPOs will be at a cost to the police and the police consistently say that the budget they are given is not sufficient, is there any danger that, in having it that only the police can apply for SPOs, budgetary constraints might stop them applying for SPOs?

Mr Grzymek: I am not one to predict the future, but this is new legislation, so the Department will monitor it. I am sure that Criminal Justice Inspection Northern Ireland (CJINI) will monitor its development. I suspect that the Committee will look at it from time to time to see how it is developing. I am sure that all the victims' groups and other groups will be very interested in looking at assessments of how it is rolling out and developing. It will not disappear into the ether. It is new legislation, and it will take time to bed in. My expectation is that the early costs will mainly be for training. In year 1, you will not have big costs more broadly, because the focus will be on training and public awareness and, no doubt, engaging with victims and other groups. I expect that, as it develops, it will build up, and, as people have more confidence in and understand the law or recognise that it applies to them, it will grow.

There will not instantly be a large bill, but it will develop, and we will monitor that. Our expectation is that the police use their money on the basis of the requirements of the law. There is always demand for more resource, and the Department listens carefully to the police, but we have to balance meeting their needs against all the other costs and, indeed, against the Northern Ireland Executive Budget. I cannot pretend that there are never budgetary constraints, but I can say that, when we bring in a new law that has support across the political spectrum, which this law clearly has, my expectation is that the Department and any future Minister of Justice will take steps to make sure that that law can be applied effectively.

We have the protection of the Department assessing its performance over time, and other interests, statutory and non-statutory, will, I am sure, keep a very close eye on how it evolves. At the end of the day, this is important law that will protect people. I would be astonished if there was any reluctance in the police or any other agency about applying it. If they feel that a different resource is needed, they will not be backward in coming forward to press the Department. The Department would, as appropriate, see that any demand that we had for additional resource was reflected in our bids for future budgets.

Miss Woods: Right. Inch on ahead. I will come to review mechanisms later. Thank you.

The Chairperson (Mr Storey): It will not be an issue just of training; it will be an issue of time, because it will take up officers' time to go through the process. It is about more than training, because the orders are physically processed. That also comes at a cost.

Mr Grzymek: The police have factored that in. They have the expectation that they will do training, annually and regularly, for their staff. At the moment, they are going through a substantial programme on domestic abuse. I suspect that the training required for stalking measures will not be as comprehensive as that, but it will certainly have a real cost. With the resources that they are currently focusing on domestic abuse, I expect that they will turn to stalking as their next significant programme.

The Chairperson (Mr Storey): Is there any correlation with costs other than with the figure of £800 in England and Wales that you mentioned? Were any other associated costs identified that we can read across to see how they would be implemented here?

Mr Grzymek: We have a variety of costs, even in relation to that £800. Some costs are higher and some are lower. Ultimately, one of our problems is how people report and record costs. We cannot tell to what degree the costs that they flagged were balanced by a reduction in other activities that they would have done instead. It is not an easy question, and I will therefore ask Barbara. Barbara, do you know the answer?

Ms Compston: No, but we are working very closely with the PSNI. There are similar orders known as VOPOs — violent offender prevention orders. The PSNI are using costings from those orders to give us a guesstimate of how the stalking protection orders will play out. That is a work in progress with the PSNI.

The Chairperson (Mr Storey): If there are no other questions on clause 7, we will go to clause 8, which is on the powers to make the orders. Do members have any questions?

Ms Ennis: I have a question about the powers to make an order if it conflicts with the alleged stalker's religious beliefs. Could you give us an example of what that might look like and what it might be?

Mr Grzymek: Clause 8(4) says:

I suppose that cultural perceptions might have some bearing on this, but it states "as far as practicable", so I think what that means is that, in making orders, those beliefs will be noted, but, at the same time, if you can reduce or avoid the impact on the victim while taking account of those cultural or religious beliefs, you should do that. At the same time, the prime aim of the legislation is to protect the victim and reduce impact, so if there is a direct conflict between religious belief and the impact on the victim —

Ms Ennis: That would supersede it. My motivation behind asking that is that I am wondering whether there is a loophole whereby somebody can claim it is impacting on their religious beliefs in order to manipulate —

Mr Grzymek: "As far as practicable" means that, to a degree, you can, but, at the same time, that is consistent with actually applying the law. If there is a direct conflict between one and the other, the law should apply. Barbara, you have worked on this. Is there anything else to say on that?

Ms Compston: No, you have covered that aspect of it.

Ms Ennis: That is OK.

Mr Grzymek: It is not a "get out of jail free" card.

Ms Ennis: That is what I am trying to get at.

Mr Grzymek: I think that is what your concern is.

Ms Ennis: Yes.

Mr Grzymek: The aim is just to be sensitive to people's religious beliefs. On educational requirements, there could be a situation where someone is a student and is stalking. If you are applying an exclusion zone and saying, "You are not to go along to certain areas", it may well be that, for an SPO, the judge might decide to allow a person a through road through an area just to get to college. If that could be done without increasing the risk to the victim, it would be acceptable. However, if the judge has a concern about the person standing outside the woman or male person's house or constantly following them, normally you might say, "You are not to go to this area", but if they have to skirt the area or go through one element of it to get to college, that modification may be able to be made. The aim is certainly not to reduce the safety of the victim in any way.

Ms Ennis: I understand that there are implications for work or school. My question was just about religious beliefs. I could not visualise that.

Mr Grzymek: I do not have good examples on the religious beliefs element, but it has certainly been applied elsewhere. We recognise that a number of religious beliefs correlate with cultural beliefs, and it is about how you can recognise people's right to religious freedom and tolerance but, at the same time, not do it in a way that allows stalking to take place. I cannot say any more than that. If you want, I will see whether I can get some more information.

Mr Laverty: Brian, may I jump in very quickly? A stalking protection order can prohibit someone entering a certain location or a defined area if that means they will come into regular contact with the victim. That person may attend a church in that area, so there is an opportunity for conflict to exist. If the SPO prevents a person entering an area but their church is there, they could say that that is affecting their religious freedoms or their ability to practise their religious beliefs. That element may be reverted to the court for it to make a determination on whether that circumstance needs to be addressed in more specific language as part of the SPO. That is only a hypothetical example. It is by no means a situation that we have used as a test case. It is just based on looking at the standard prohibitions that we expect could be reflected in an SPO. There is a relatively straightforward extrapolation of circumstances whereby someone's religious beliefs could be impacted if they are not able to attend a church of which they are a member. That would be for geographical purposes only.

Mr Grzymek: Andy has offered a good, simple example. I was trying to think of a complex example, and I failed, so there you go. That is a fair point. It is not dissimilar to the educational one in that area, where there might be a modification purely to facilitate access to a place of worship.

Ms Ennis: I get that. it would be interesting to see how that would play out in practical terms. Hopefully you will never be in that position.

Mr Laverty: Well, it is —

Mr Grzymek: Well, it is "so far as practicable". I suppose that the extreme example would be if they had to walk past the victim's house to get to their local church. I suspect that, in that case, a judge might deem that not to be practicable, because it would essentially allow the person to continue some of those behaviours. It might be deemed not unreasonable if they were put in an exclusion zone in an area, then went through the edge of that area while still at a distance from the person's house. Of course, it has to be practicable to a degree. That means that, in making the judgement, the judge does not necessarily have to bend to that. It would depend on the circumstances.

Ms Ennis: You are saying that, at all times, the law will be applied to protect the victim.

Mr Grzymek: Yes.

Ms Ennis: Considering the sensitivities, religious or otherwise, the bottom line is that the victim has to be protected.

Mr Grzymek: Yes. If there are ways of making minor modifications that will allow the victim to be protected while, at the same time, allowing access to a religious or educational facility, I suspect that that is how it will be applied by a judge in the main.

Ms Ennis: That is fair enough. Thank you.

Miss Woods: Could somebody come in on clause 8(4), which is about the prohibition requirements that we have just been discussing. Following on from that, it says, about the power to make orders:

which we have covered, but also to avoid:

The Chair and I met a number of victims of stalking over the summer, two of whom fit that category: one in relation to an educational establishment and one a workplace. Is there flexibility with these orders? Has legal advice been taken? Under this legislation, if a stalking protection order is needed, and the stalking was happening at the educational establishment or the workplace, do "D's" rights to work in the workplace or to attend the educational establishment trump the victim's right to the SPO?

Mr Grzymek: No. I think that what I said previously still applies. As you noted, it says:

At the end of the day, if it is practicable for a person to continue to attend an educational facility in a way that does not impact on the victim, it follows that the judge would countenance that. In essence, however, if that was not practicable, because it would mean that they would have to be in the same room or to come into inappropriate contact, that would have to be taken on board by the judge. It means what it says: "so far as practicable". At the end of the day, I think that a judge would be very wary about impacting on the work, education or, for that matter, religious requirements of an individual. That having been said, however, that is only contingent on that not impacting on the welfare of the victim.

The aim of that clause is that, if there are mechanisms whereby you could facilitate work, education or religious access without impacting on the victim, the expectation would be that that would happen. At the same time, however, the prime aim is to protect the victim and prevent the impact of stalking so, if that cannot be done in a practicable way, the SPO would prevent that access.

Miss Woods: Thank you.

Mr Grzymek: The judges will look very carefully at that as they are conscious of people's right to employment and other things. At the same time, if that right interferes directly with the welfare of the victim, the judge will make the hard decision in the court. Clause 8(4) says what it says: "so far as practicable". Therefore, if that can be done in a manageable way, and the victim is not disadvantaged or impacted, steps should be taken to facilitate that. However, that is contingent on it not impacting on the victim.

Miss Woods: I appreciate that. There is a balance of rights. In the interim protection orders refer to the duty to seek "prohibitions and requirements" about religious beliefs and "normally works or attends". Obviously, interim orders and formal orders do not require a conviction. I can envisage a situation where there is no conviction, but the orders may come into conflict with a religious belief. For example, if there was stalking at a church on Sunday, and an interim order is made. There will be no conviction, and the individual may say, "Well, that is my religious belief. I have to attend this church." What happens in a case like that? Where is the balance? Has the Department received legal advice about the balance of rights, especially where there is no conviction? Earlier, we discussed the length of time it can take to seek a conviction — if at all. The thresholds for an interim order and a full order are different for the police. Is there an appeals mechanism for an infringement at a workplace or school that a victim must continue to attend? The perpetrator may say that they must also continue to attend because of a religious belief and can, therefore, continue to stalk the victim. It is then put on the victim to change their lifestyle and where they go. It is put on the victim because there is no evidence to suggest otherwise.

Mr Grzymek: Rachel, I understand what you are saying. The reality is that we know that victims frequently change church, education facility, city and country to get away from stalkers. Victims do not get support. The Bill says that interim orders and SPOs are for when there is an assessment of risk that such an order should be applied. That will have an impact on the individual. If that impact can be ameliorated so that the victim and perpetrator can go to a place of work but not associate or come into contact, maybe that is deliverable.

We are trying to prevent continuing and growing damage to the victim. There is no easy answer. Ultimately, if the perpetrator is not prevented, in some cases, where it is not practicable to manage the stalking, the alternative is, say, that the victim does not attend the educational facility. Therefore, you are further victimising the victim. The aim of the stalking protection order is that, when a real risk is recognised, as assessed by the police using well-tried assessment tools, and that cannot be managed in a way that allows normal behaviour to continue for the perpetrator and the victim, it is quite right that the interim order or the SPO should impact on the perpetrator.

At the end of the day, there is no easy answer. One or the other is going to be affected. In many cases, the victim has already been subject to multiple instances of stalking, and to require that person to move and take further steps to protect the perpetrator is not the right way forward. Whatever way we go, there will be an impact on people's liberty. We are talking about cases where there is a victim but no criminal standard of evidence and proof. The police will have undertaken a detailed assessment that shows the level of risk that requires an immediate order in advance of any prosecution. In those circumstances, it will affect the perpetrator, and so be it.

Miss Woods: Thank you, Brian. I appreciate that it is difficult. There is no easy answer, and this is better than the current situation. We have heard that there is very little support and that it is up to the victim to move and change their life when they should not have to.

I appreciate that. I have had a bit of an issue with that point since we got the Bill. Is the balance right between getting the protections in place for victims and not saying, "Oh, if you work there, it is OK. Continue on, because the balance of rights is in your favour as a perpetrator"? It is a question of the balance of rights in the orders, because they do not require a criminal conviction. I appreciate that it is a very complicated matter and will probably be thought out in the courts — absolutely — but we have heard from victims that it is in and around religious, workplace and educational areas that they have been stalked. At the moment, the educational establishment or the workplace takes nothing to do with it. There is no duty to assist, or it is just that they do not want anything to do with the problem. It is then put on the victims to change. That facilitates further stalking down the road.

Mr Grzymek: Yes. Sadly, that is the way. I have heard of cases in which employers have been more proactive and constructive. Obviously, that works better with big employers who have multiple departments; I know of instances where people have been moved to different work areas. I have also heard of a lot of cases, however, where the problem is in the "too difficult" pile, and employers bury their head in the sand and hope that the problem will go away. That helps no one. There are no easy answers. This is our best bet. As always, Rachel, I am more than happy for you to give us a better answer, in which case we will look at that with interest.

Mr Laverty: Chair, with your blessing, I want to reassure Rachel that, when we were developing the instructions for the Bill, they ran to 60 or 70 pages. Those are instructions that we prepare for the legislative draftsmen to use to draft the legislation. The instructions are developed hand in hand with in-house legal resources. The Office of the Legislative Counsel (OLC) comprises hugely qualified legal minds. It does not draft legislation that is not ECHR compliant. As part of the pre-introduction procedure for any legislation, the Departmental Solicitor's Office (DSO) provides the Minister with advice on the competence of each clause and its compliance with ECHR legislation, and the Minister, in bringing the legislation to the Assembly, signs a statement that, in her view, the Bill is ECHR compliant. It is not taken lightly in any sense. It is a hand-in-glove approach to the development of the instructions at the very start of the process. You have your policy intent as to where you would like to go, and then it is about working through it line by line to make sure that it does not impinge on rights willy-nilly or, where a right might be impinged on, that a protection is in place to allow for it because it is in the interests of the victim. I hope that, in some way, that reassures you that there has been very diligent legal advice and direction the whole way through the development of the legislation.

Ms S Bradley: Apologies, Chair, for dropping out earlier.

That is a weak spot in the Bill, from my reading of it. In saying that, I am taking account of the victims about whom we heard through the summer. The orders, despite their best intent, can be made a mockery of — if applied at all. We heard some harrowing stories of people in the workplace who ultimately slipped the net of these orders. It happens particularly in workplaces, I think. I understand that, with religious beliefs, somebody could turn up anywhere or move to any church or place of worship, whereas a workplace is or can be a place where people share employment.

I take on board what you say about being ECHR compliant, but is there any possibility of an employer engaging with the drafting of an order and what it may and may not stipulate? We have heard stories of employees making excuses, for want of a better word, to be in a particular place that they should not have been and making a point of being there. In those cases, the victim knows that they are there, and it is part of continuing harassment. Is there any scope there, perhaps there is not?

Jumping ahead to clause 13, which deals with breaching an order, unless the order is well pinned down, it is very difficult to say what is in breach of it and what is not, especially when such a wide area is left unattended. That is particularly speaking to the experience of people who are being stalked in the workplace.

Mr Grzymek: I can give you a partial answer to that. You said that orders can be made a mockery of. However, since we have not created the orders yet, I am not sure how anybody can assert that they will be made a mockery of. We have not started them yet.

Ms S Bradley: Sorry, I need to explain that a bit further. I should have said that I am talking about an example in which an employer had, in good faith, engaged with a victim and set in place rules of confinement and called on the better behaviour of people, saying, "This is what we expect you to do". I appreciate that that was not an order, but it was the engagement piece of separating two employees. I wonder how a protection order that gives space — rightly so, and I understand why — to D and their normal place of work can be successful. Unless we pin it down, I can see the situation that I cite being replicated.

Mr Grzymek: The police, in applying for an order, will speak to the victim and assess any risk. When the order is made, it is not an informed agreement between the employer and the employee; it is a requirement on the perpetrator, or the perceived perpetrator, with regard to their actions and what they are allowed to do. For a small employer who has no way of enforcing separation, it may prohibit the perpetrator from working in that place. Ultimately, it is not an informal agreement that people can ignore.

As you noted, breaching the order will be a criminal offence, so it is serious. I am not pretending that molestation orders and other orders that already apply do not get breached from time to time, but action is taken when that happens, as it should be. These are cases where an order is being made on the basis of a clear assessment of risk, and if it is breached, there is recourse to a criminal offence. It is quite a different order of magnitude to having an informal agreement with employers.

Andy mentioned ECHR compliance. It is recognised that, under the ECHR, there is a right to employment and the enjoyment of those sort of benefits. Ultimately, however, people have a right to life and a right to proceed about their business without being assaulted, attacked or degraded. It is always a balance of risk, but, in this case, the orders are not informal agreements; they are civil orders but they can result in a criminal offence if they are breached. That gives you a much harder edge than is the case at the moment.

Ms S Bradley: I take your point and appreciate that the consequences for breaching the order are well pinned down, but I am thinking whether it is easier to just stay away in some cases. You talk about it being "practicable". How would you judge that without knowing or engaging with the employer to find out what they can do to safeguard the victim?

Mr Grzymek: Ultimately, it is not what the employer can do; it is what the law can do. At the end of the day, I suspect that the employer might have problems with saying to an individual, "Do not come into work", as they may find themselves before a tribunal for constructive dismissal. If a judge determines that, because of the nature of the workplace, the individual cannot work there without impacting on the victim, the phrase "so far as practicable" comes in and, if it is not practicable to manage it, there will be consequences.

If you are asking what the employer will tell us, I can tell you. They will tell us that it would all be very difficult. However, the bottom line is that, in certain circumstances, it may be that either the victim or the perpetrator moves. Historically, and up until this point, it tended to be the victim because, unless they were particularly good, employers did not take the right action. Their interests are no doubt in smooth working arrangements, but, at the same time, they usually do not want to become involved in these sorts of disputes.

If it is appropriate, where there is a clearly defined risk that the police have identified, have brought it to the courts and the courts may make a judgement, that judgement might mean that the person who has been perpetrating the behaviour will not be able to go to the workplace. The alternative is that the victim does not go to the workplace, and that seems to be wholly unacceptable. As I said to Rachel, there are no easy answers.

Ms S Bradley: I appreciate that. What I am reading into this is where the employer will be. At what point will they be informed that they should tell their employee that they should not be in a given place under any circumstances? Would they be fully informed of the judgement that has been made?

I would like to be clear on the employer's role. As you said, there are different sizes of companies, and it might mean different things to different businesses, but it all hinges on the word "practicable".

Mr Grzymek: Yes, but the judge will determine what is practicable. Certainly, there is no doubt that if the case goes before the judge, the perpetrator, or the person perceived to be a perpetrator, might cite that issue and the judge may ask for evidence about the possibility of the employer operating in a way that would separate the individuals. If he got that and had some assurances that that would be in place, the order might reflect that. However, if the judge could not get such assurances, they may take a different view.

I am not, in any way, trying to prejudge, or otherwise determine, what a judge will do. However, it is clear that the legislation will apply. There are rights to education, religious freedom and employment, and, clearly, those will be met to the degree that they can be, but, at the same time, the pre-eminent requirement is that the individual is kept safe.

The Chairperson (Mr Storey): OK. Brian, can a judge make an SPO at the end of the court proceedings, or would he still have to apply to the court?

Mr Grzymek: Sorry, Chairman. I may have missed your meaning. Can the judge do what at the end of the court proceedings?

The Chairperson (Mr Storey): Can he order an SPO?

Mr Grzymek: A sub? Sorry?

The Chairperson (Mr Storey): The SPO.

Mr Grzymek: Oh, the SPO. Essentially, the case would go to the judge for an SPO or, if the police felt that there was an urgent need, an interim SPO. Those cases going to a judge for an interim SPO on the grounds of urgency would presumably be where there is a serious risk or concern that suggests that waiting to go through a longer process to get an SPO would be inappropriate. If it was an SPO, the judge will make a judgement at the end of it as to what restrictions would be put in place and expected to be followed, with the alternative being a breach and a criminal offence. I think that that criminal offence would be subject to up to five years' imprisonment.

Mr Laverty: Yes.

Mr Grzymek: It is a serious criminal offence.

The Chairperson (Mr Storey): OK. Thank you. There are no more questions on clause 8.

We will move to clauses 9 and 10, which deal with the duration of the orders and variation, discharges and renewals. Do members have questions on those clauses?

Ms Dolan: Section 7 of the Stalking Protection Act 2019 in England and Wales sets out the right of appeal against SPOs and interim SPOs, but clause 10 of our Bill allows for any defendant to apply for a variation to or discharge of an order. What is the difference between a direct appeal and an application for a variation to or discharge of an order? Would it be more suitable to build in the right of appeal from the start in order to give the victim a greater feeling of security?

Mr Grzymek: A direct appeal is where the person is saying that the judge has misdirected and that the order would be an inappropriate course of action. A variation might well be where the person says, "I have a new job, which means that I have to go from A to B, so I have to skirt the area" or, "The restriction that you have put in place is onerous and could be varied without damage to the victim". That is the difference: one is saying that the judge has made an error in law or in their determination; the other is where the person is looking for a modification of some of the restrictions, in which case they would have to demonstrate good reason, and the judge would have to be satisfied that that variation would not, in itself, create increased risk to the victim.

Ms Dolan: I understand that but have concerns for the victim. I would rather that they did not have the cloud of a potential discharge application hanging over their head for the duration. I understand where you are coming from as well.

Mr Grzymek: In law, whether you are the victim or the perpetrator/accused, you have rights. In law, if there are grounds for an appeal, you have a right to that. Your circumstances can change in lots of different ways. It may well be that although the judge initially applied quite a wide band of restrictions, some may be less necessary than others. The offender, or the person who is accused, may well seek to modify them in order to make their life easier. If that can be done in a way that does not impact on the victim, I suspect that the judge might grant that.

You have to give rights on both sides. You do not start off with a guilty person and an innocent person; you start off with an assessment by the police that there is a victim who is being impacted on by stalking behaviour. It is quite likely that a person who is accused of stalking behaviour will say that their behaviour was quite reasonable and has been misunderstood. You cannot start off with a guilty person and an innocent person; you start off with a case in which the judge will hear all the evidence and make a judgement based on that.

Ms Dolan: That is fair enough, thank you. Those are all my questions, Chair.

The Chairperson (Mr Storey): Do any other members have questions on those clauses?

Miss Woods: May I ask for some clarity on that issue?

The Chairperson (Mr Storey): OK, go ahead.

Miss Woods: I just want to be clear about the stalking protection orders and the interim orders, which we are coming on to. Is a method of appeal built into this legislation?

Ms Compston: There is a method of appeal, but it is not in the Bill. During the drafting of the Bill, the Office of the Legislative Counsel and the Departmental Solicitor's Office advised that, because an application is made by way of complaint, the appeal provisions in article 143 of the Magistrates' Courts (Northern Ireland) Order 1981 apply, which means:

So, there is an appeal process.

Miss Woods: OK. Is there any particular reason why that is not in the Bill or its explanatory and financial memorandum (EFM)?

Mr Grzymek: The answer is that where there is an existing mechanism for an appeal, you would always apply to that. There is no need to write an appeal clause into every piece of legislation that creates an offence. The 1981 legislation provides access to appeal for this offence and for many offences in other Bills. It is a free-standing right of appeal.

Ms Compston: We will include appeals in the guidance, which we will come on to later. We are producing for the police guidance that will outline the appeals process.

Mr Grzymek: It does not have to be in the Bill itself.

The Chairperson (Mr Storey): Are there any other questions on clauses 9 and 10?

Ms S Bradley: I have a quick one, Chair. Do stalking protection orders, including interim orders, which we will come on to, apply to the offence of threatening or abusive behaviour as well as to the stalking offence?

Mr Grzymek: Barbara, can you say how those apply to clause 2?

Ms Compston: Yes. They could apply.

Mr Grzymek: The answer is that they could apply, but clause 2, by its nature, tends to be about single instances, not courses, of behaviour. Given that a stalking prevention order is about trying to disrupt a pattern of behaviour in the continuation of stalking, it is hard to see how that would apply to the clause 2 offence. In some circumstances, it could apply. Protection orders are really about disrupting an individual's course of behaviour. It is hard to see how a one-off behaviour would fall into that. That said, never say never on these things. I am not saying that it can never happen. At the same time, I think that the orders apply more to clause 1, which clearly talks about "a course of conduct". The purpose of a stalking protection order is to try to disrupt that course of conduct, and, in some cases, that will be in advance of prosecution. In other cases, the order may be part of a therapeutic response to try to get someone who is carrying out stalking behaviour to a different place.

Ms S Bradley: Thank you. Brian, that was my thinking on it too. It stands to reason that that is the case. I looked at the wording for clarity on that. The clause on protection orders refers to an "act associated with stalking". In our conversation on clause 2, that is exactly what we talked about: an act associated with stalking, but, in that case, it is a one-off as opposed to a pattern of behaviour. That jarred with me earlier, for the same reason as it does here: it does not flow as easily. However, I accept entirely what you are saying. Thank you.

The Chairperson (Mr Storey): Thank you. We will move on to clauses 11 and 12, which deal with interim stalking protection orders, their content and the procedure for them. Are there any questions from members?

Mr Grzymek: We have had quite a lot of conversation about the interim orders. They will allow the police to go for a very early order on the basis of an initial assessment that they cannot wait to go through a fuller process.

The Chairperson (Mr Storey): OK. We will move on to clauses 13 to 16, which deal with the offence of breaching an order; notification requirements; method of notification and related matters; and offences relating to notification. Are there any questions from members? OK. I have one query, Brian. Why does the Department not consider that the appropriate maximum penalty on summary conviction for breaching the order or for offences relating to notification should be 12 months rather than six months, given that that is provided for in England and Wales?

Mr Laverty: Although the English legislation refers to 12 months, underlying legislation, which has not yet been commenced, means that, for all intents and purposes, that 12 months is read as six months. There is a slight discrepancy between the two sets of underpinning legislation in the two jurisdictions. In effect, the English legislation will still be read as having a six-month maximum penalty, which our legislation directly relates to. If a sentence of more than six months is available on summary conviction in Northern Ireland, it triggers a mechanism by which the person can apply for a hearing with a jury rather than a summary judgement. It is about trying to make sure that that circumstance is not routine. The intention of having a summary judgement is that it is quick, concise and determined, and the judge is able to make that determination. If you start to expand that to allowing the Magistrates' Court to hear trials with a jury, that clearly introduces an element of additional time and potential delay.

Ms Ennis: I know that we exhausted the reasonable excuses for breaching the order, and we talked about educational, work and religious settings. I want to be clear on whether there are other instances in which a reasonable excuse can be used. When the Bill talks about what would be deemed "a reasonable excuse", does it refer to those three areas that were stated in previous clauses, or is there something that we may not be thinking of?

Mr Grzymek: It says what it says: it is about "reasonable excuse". We have given the example and already covered what constitutes a reasonable excuse. We recognise that there could be legitimate reasons for certain behaviour. The police, for instance, could be carrying out a surveillance operation on someone. That would not be stalking; that would be lawful behaviour. The aim is to differentiate between stalking and behaviours that are accidental or unrelated. Someone being outside a person's house for several days on the trot may make that person begin to worry that something may be going on, but, in fact, that individual may well have a legitimate reason for being there. Ultimately, we want to make sure that we do not pick up people who accidentally, inadvertently or lawfully appear to be developing a course of behaviour.

Ms Ennis: I understand that. I am talking about where someone already has an SPO and the offence of breaching an order. The explanatory and financial memorandum says:

I want to make sure that, apart from school, work and religious reasons, there is nothing else that would be deemed a reasonable excuse to breach an order.

Mr Grzymek: We defined "reasonable excuse" earlier.

Ms Compston: It will have to be taken on case-by-case basis.

Mr Grzymek: Yes.

Ms Compston: We included a catch-all for the offence in clause 1(4)(j), which says:

In that instance, the judge would have to look at the relationship and the knowledge of the victim that the perpetrator has.

Mr Grzymek: It is not clear-cut, as Barbara says. Look at clause 1(5):

— obviously, that means the police or others —

"Reasonable in the particular circumstances" is not a narrowly defined line. It means that the judge will look at what the person says that they were doing, and, if that is deemed to be reasonable and acceptable, that will be taken on board. As with the list of what constitutes stalking, we recognise that producing definitive lists often limits rather than enables your actions. In that case, too, we have to recognise that people who are accused also have rights, and they have the right to explain what they were doing. The judge will exercise his judgement in determining whether the excuse that they have given for their behaviour is reasonable.

To try to define it more precisely risks creating errors.

Ms Ennis: Just to be clear, I am not saying that, if somebody is installing gas in my street and has to be there for two weeks in a row, I would think that they were stalking me. I am talking about when somebody already has an SPO. What I am trying to get to is that there is nothing else that would be considered a reasonable excuse. I do not think that there should be a reasonable excuse, by the way, for ever breaching an order, but there are the three instances that we spoke about: you attend the same church or religious institution as somebody; you work in the same place as somebody; or you both go to the same educational establishment. Outside of those three scenarios, there is the person who already has an SPO.

Mr Grzymek: Those are not really reasonable excuses; those are mechanisms that, in creating an order, the judge will, where practicable, try to take into account. The reasonable excuses are often about acting lawfully. You could have a situation in which, say, someone who was prohibited from going to a particular area was on a bus, there was an accident, the bus was diverted into the area, and they went past the person's house. That could be a reasonable excuse.

Ms Ennis: That is what I am trying to tease out. That is an example.

Mr Grzymek: We cannot define in law all circumstances where something like that could happen. We are giving the judge the capacity to listen to the explanation. Despite the fact that the person was given an order and was clearly deemed to be a risk, there could be a circumstance where, despite their best efforts, they find themselves potentially in breach. In that case, the judge would ask, "How did this happen? Why did it happen?" and then make a judgement call. Not having that would, I think, risk a miscarriage of justice. Someone could, essentially, be given a criminal conviction for an action that they had no intent of committing. The intention is to prevent that.

Ms Ennis: I was trying to get to what an example of a reasonable excuse could be. That is fine. You have described it.

The Chairperson (Mr Storey): The police raised an issue with clause 15, which is about notification. They sought clarity on whether the notification should take place in a prescribed police station or whether it could be undertaken via, for example, videoconferencing. The response from the Department was that it is:

Do we have any clarity on how that is likely to land?

Mr Grzymek: I will pass over to Barbara in a second, but our aim, in having our implementation group bring in the police and others, was to look at those sort of questions and work out what makes the most sense. Our aim is to facilitate this in the most practicable way so that we do not waste police resource but, at the same time, make sure that the law is enforced. Barbara, do you want to say anything?

Ms Compston: Through the group and through working very closely with police, we will look at that issue. We have other regulations that were made for violent offenders, and those regulations looked at that same issue, so we are working closely with the PSNI on that work stream.

Mr Newton: May I ask a general question? It is not about a particular clause.

The Chairperson (Mr Storey): While it is in your mind, we will deal with it.

Mr Newton: Thank you. I note that, in the evidence that was supplied to you, one section of the justice sector — community justice/restorative justice — did not provide any evidence, yet I know from experience that restorative justice organisations are approached in a community context when there is a breakdown in relationships of one sort or another. It could be reported, perhaps, that someone is being followed, that there has been contact on social media that was not liked or that someone called at a home when that was unwanted. In those cases, the request to the restorative justice organisations is, "Tell him to stop" or, "Tell her to stop". Indeed, that would probably require restorative justice organisations to seek a meeting between the two parties as part of a process. It may also require an agreement to put specific actions in place. In the context that the situation is not resolved at the community restorative justice level, what are the implications when it escalates and becomes a matter for the police?

Mr Grzymek: We use the acronym FOUR to describe stalking behaviour: fixated, obsessive, unwanted and repetitive. We are not talking about someone who bangs on the door a few times. We are talking about behaviour that is quite often fixated and obsessive. I have sponsored restorative justice and worked with all the main organisations in Northern Ireland over the last 10 or 15 years. I am well aware of their good work. However, some of the people whom we are talking about are obsessive. I am not sure that restorative justice can deal as well with that type of individual as with someone who has just gone off the tracks a bit and needs to understand the impact of their behaviour on victims. Quite typically, people involved in stalking have no concept of the impact on victims. They are obsessive and see only their situation.

I am not sure that there can never be a place for restorative justice. I suspect that, when you are trying to change behaviour, the solutions may lie more in the realms of health than justice. In essence, if community-based solutions have been tried to resolve a matter, and those came to nothing, the behaviours were increasingly impacting on the victim and came to the police at that point, the fact that they had tried to resolve the matter is fine. However, the police will make a risk assessment and act appropriately. The dilemma is that, quite often, stalkers are obsessive and manipulative.

I know of stalkers who have used the law and some of these mechanisms to further embarrass, attack or have an effect on the victim. It is a difficult area. I am not sure that restorative justice can never work, but the big problem is that, quite often, people who are accused of stalking have no insight into their behaviour and its effect on victims, or, if they do, it is deliberate. There are several types of stalker: from people who have a general fixation to people who had a relationship with the individual that has broken down. They may want to get back together with the individual or get revenge. A number of different factors are involved. I suspect that restorative justice might have some marginal role, but it will not be a major one.

Mr Newton: Presumably, if a case went to the police, and someone had been to a restorative justice organisation, the records will be used by the police to take the matter further.

Mr Grzymek: Again, I am not sure to what degree restorative justice operates with full records. Yes, the police will look for evidence to demonstrate that sort of behaviour and its impact on the victim. If there is evidence from a restorative intervention that supports the police's understanding of what is going on, that should be used.

Mr Laverty: Chair, may I add something very briefly? Mr Newton, the concept of using community-based restorative justice runs contrary to the provisions in clause 3 which is about the special measures that are designed to avoid someone being cross-examined by the perpetrator.

That is not to say that community-based restorative justice does not have its place but that the starting point in the Bill is that special measures are automatically available so that a person is not forced to meet their perpetrator or to be cross-examined by them.

Mr Grzymek: That is quite right, but perhaps Mr Newton's point is that this might well be at an early stage when there is no clarity that it is stalking.

Mr Laverty: My apologies.

Mr Newton: I have had folk in my office over the years who are being annoyed by an ex-partner or whatever, and I can see that that might be an easy call.

Mr Laverty: That may come into the realm of understanding the difference between harassment and stalking. Harassment can sometimes be as a result of an issue, and, if that issue is addressed, the problem resolves itself and does not manifest or take on a greater life. As Brian said, we use the FOUR acronym to distinguish between the two sets of behaviours. When stalking is fixated, obsessive, unwanted and repetitive, that does not lend itself well to community-based restorative solutions. I take your point that, when there are lower-level harassment-type issues, if an independent party is able to mediate between the individuals, the issue that is causing the anxiety between the parties may be able to be resolved.

Mr Grzymek: It may also be that, initially, it does not look like stalking. Maybe it looks like harassment, or maybe a couple has broken up and there is a dispute over who owns the dog. It could be something that, on the face of it, looks like classic harassment or whatever, and then it develops and the dog turns out to be just an excuse and the situation is much more serious. Sometimes, stalking, when it first starts, may well look like something else or it may be unwanted attention but, at the same time, not sinister. However, if it continues, it becomes sinister and starts to impact on an individual, and that is when the legislation should be applied.

The Chairperson (Mr Storey): Clause 17 is on guidance. Brian, when does the Department expect that the text of the amendment will be available for consideration by the Committee?

Mr Grzymek: We are working with the police and others on that. Do you have any idea, Andrew?

Ms Compston: Is this the amendment?

The Chairperson (Mr Storey): Yes.

Mr Grzymek: The amendment, sorry.

Mr Laverty: We have issued instructions to the Office of the Legislative Counsel. It will not be a very wordy amendment. The form of words might be simply, "Insert the words 'and lay'" into the text that is already in clause 17. Obviously, that in itself would not be particularly onerous for the Office of the Legislative Counsel to produce for us, but it is a question of other priorities and of that being included in the OLC's current work programme. We have been told that we can expect it shortly. As soon as we get it, we will share the text of it directly with you.

The Chairperson (Mr Storey): Barbara, you referred earlier to the oversight group. Does that include victims' organisations as well as the PSNI and other elements of the justice family?

Ms Compston: At the minute, we have the PSNI, the PPS, the Probation Board, the Prison Service and colleagues from the public protection branch. We will bring in voluntary organisations such as Women's Aid and Victim Support to ensure, specifically for guidance, that they can give their views.

Mr Grzymek: It is fair to say that we started off with the oversight group to help us to look at aspects of the legislation and to get an understanding of training and other requirements. It is now, if you like, transmogrifying into an implementation group where, in fact, we are moving away from discussions about how these things might work to starting to build in the detail and looking at the regulation. To do that, we want a broader input than just justice organisations.

The Chairperson (Mr Storey): Rachel, did you want to come in?

Miss Woods: No, Chair. I am OK on guidance.

The Chairperson (Mr Storey): Are there any other questions on clause 17? No. OK.

Clauses 18 to 20 are "Interpretation", "Commencement" and "Short Title". That brings us to the end of the clauses.

I have just one query. It goes back to the sentence that we discussed earlier about education, churches and workplaces. Has there been any discussion among the Economy, Health and Finance Departments in relation to workplace policies on stalking?

Mr Grzymek: Not to this point. Ultimately, what we are talking about is a criminal offence, and where there is a stalking prevention order, it is a civil offence, which could be followed up by criminal behaviour. In that context, the focus is very much on the impact on the victim. We are very conscious of the fact that, often in these instances, where, at the moment, what happens — I discussed this with Rachel earlier — is that the victim is further victimised by having to move office, change job or church. That seems to be a disproportionate response to being a victim of what we believe to be an offence. So, in this case, that clause, where we said where practicable account should be take, means that we would expect reasonable steps to be taken to see whether you can allow the person to be kept in work, education, church or whatever. At the same time, if it is not practicable, the expectation is that it is them who would be affected and not the victim.

We are very conscious of victims. Usually, as I said, they experience 100 or more instances before they make any report at all. Quite often, they are vulnerable at that stage and quite damaged. Victims whom I have seen have been very much that way. Even though some of them have been very brave and courageous in coming forward, the reality is that they have been badly affected by stalking, and to continue that stalking in the interim, where the police assess that there is a serious risk of harm to the victim, would not be acceptable.

In that context, we have not discussed it with those Departments. Our expectation is that the law will apply on the basis of protecting the victim.

Miss Woods: Thank you, Chair. Is this on the other issues section?

The Chairperson (Mr Storey): Yes. This is just to tidy up the other issues.

Miss Woods: Thank you. You will not be surprised that I have a few questions. As you recognised, the Committee and I have had a number of conversations with the Department on the Domestic Abuse Act about the reporting requirement. We discussed this briefly earlier, and it is about reporting on the operation of the Act and people scrutinising it and keeping an eye on it — CJINI, the Department, occasionally the Committee and so on. You are aware that the Committee and I focused previously on the Domestic Abuse and Civil Proceedings Act and the need to report on that. Has the Department considered that? Maybe something should be added to the Bill. Is there any reporting provision in the Bill?

Mr Grzymek: It is not in the Bill at the moment. As with any other legislation that I have put through, my expectation is to report to the Committee periodically. I do not think that that provision has to be in the Bill. The requirement of the Department is to bring in legislation and make sure that it works effectively. We will review it regularly, certainly on a six-month or annual basis, at the beginning. In some of the evidence that you received, there were issues about data and information being made available. At the moment, there is perilously little information about stalking because there is not a stalking offence, and harassment convictions do not specify whether it is because of stalking, disputes over hedges or whatever. We do not really have great deal of data, but my expectation and that of the Department is that we will build up a body of information as the legislation rolls out and is implemented. We will keep it under regular review. It is novel legislation. As such, my expectation is that we will report back regularly to the Committee. I am not sure that you need that in the Bill, but I assure you that that is our intention.

Miss Woods: Thank you, Brian. I appreciate that. There are a number of issues that are very similar to those that I discussed during the passage of the Domestic Abuse Act. The Committee proposed a number of amendments to that legislation to make sure that, as we were dealing with a new offence, there was a requirement to report, review and collect certain data. You will see where I am going with this. Although I appreciate that you expect to report to the Committee, I would welcome a duty to report publicly as well and specific data being collected from all criminal justice agencies, which, again, is what we put in the Domestic Abuse Act, so that a body of information is built up. Again, it is a new criminal offence, and we need to know what we are talking about. It is about data collection along the same lines as in the Domestic Abuse Act.

My final point is on a similar theme: the focus on mandatory training. I appreciate that training on stalking has already been discussed with the police, but it is not just the police who need training on stalking; it is the whole criminal justice agency piece. I have tried to include the courts in that. We could not legislate for that in the Domestic Abuse Act, but it is certainly something that I would be keen to revisit. We are criminalising different behaviour now: coercive control, stalking and all the things that we have not criminalised previously. People need to know about them. They need to be trained on the means by which perpetrators do those things. They need to be trained on the impact on victims, especially when we are talking about SPOs, interim SPOs and risk assessments. I am saying in a very roundabout way that I would be very supportive of those things being in the Bill. I would welcome your opinion on that.

Mr Grzymek: It is always a judgement call when it comes to what you put in Bills and what you do not. It is an open door, insofar as we are already working to do all those things. The stalking implementation oversight group started out as an advisory group to the Department to help us to draft the legislation and make sure that it fitted into the different organisational requirements in justice. I have made the absolutely clear commitment that we will bring in Victim Support and a number of other groups to help us to draft regulations and look at how we will implement the Bill. That will bring in all the key justice organisations and some of the victims' groups as well. That is happening.

On that front, there is not any real data at the moment because we do not have a mechanism, but, as part of the implementation process, we will create new data sets, which will go into Causeway. As you know, we already have a complex messaging system that keeps all the justice agencies on track when it comes to data about offences etc. These will be new offences going into Causeway, and they will be available across the system. We will be able to report on those because we will have data. It will take a wee while to build up, of course, but, as we go along, it will become increasingly reliable and useful for predictive purposes.

Alongside that, when it comes to the civil orders, which do not routinely fit into Causeway, the police are already looking at how to create a mechanism whereby information on stalking protection orders recorded in one divisional area is available across the police divisions. That is so that, if someone who was stalking in one area moved to another — apart from the fact that they have to report where they are — and was trying to commit an offence in another area, and a victim came forward to the police, and, even though there had not been a criminal prosecution, there was a civil order, the police would be able to track that, and that would give them more information, which would result in their being able to act more effectively.

A number of those things are happening. In some cases, some of the actions will be complete or largely complete by the time that the Bill passes. It is reassuring to have those things in there, but I am not sure whether they are necessary. That is a matter for the Committee to judge. I simply note that, when it comes to data, we will have an appropriate database, and we will monitor it. When it comes to regulation and developing an implementation plan, we are bringing all the relevant justice agencies into play, and we will also bring in the victims' groups, as we did earlier. We had a reference group that included victims to advise us on the preliminaries leading to the legislation.

Finally, on reporting, the Committee can ask us to report on anything it likes, of course. As a matter of course, we put things on the Committee's agenda quite regularly on areas on which we are reporting. I have reported to the Committee many times in my career over the past 20 years. We will do that anyway, but if you feel that there is a need to require us to do it as well as us doing it anyway, that is your prerogative. As a civil servant, I am, of course, relaxed about what the Assembly decides is appropriate in these situations. I just note that, in a number of areas, we are acting in advance of being forced to do stuff, and we are doing it on the basis that it is best practice. Our aim is to produce good law that is effective and has impact.

Miss Woods: Thank you, Brian. That was a very "politician" answer; I like it.

Mr Grzymek: That sounded like abuse to me, actually, Rachel. I could be wrong.

Miss Woods: I want to pick up one thing on data collection. I raised it in relation to the Domestic Abuse Act, and I will raise it again. I tried to amend that legislation by including data collection by section 75 designation, but that was not the will of the House at the time. We have heard from organisations throughout our evidence gathering that they would like to have data broken down by section 75. Has the Department considered that again?

Mr Grzymek: It is early days. I expect that it will be a few years before we start to build up a body of data. The Department is looking more generally at how we make sure that we get data that is sensitive to the section 75 groupings. The legislation, clearly, is equally applicable to all groups. We have talked to the Rainbow Project and other groups. It is not just about domestic abuse or heterosexual partners. It is happening in the gay community. It is happening in a range of groups. Disabled people and others have also been affected. We are very conscious that there is a heterogeneous mix of potential victims. The law applies equally to all; it is available to and should have the same impact on all.

I am not sure about breaking them down into the subgroups. I am open to persuasion on that one. You do not have to write it into legislation to do it. We can do it administratively. We have to be able to identify groups to look at differential impacts, but, when we try to do those things, one problem is that we always get a percentage of people who do not come forward and say, "I am in this group". It is complicated. In some ways, it is better to do a one-off exercise and to go and survey rather than have an automatic system, but I am open to persuasion on that one.

Miss Woods: Thank you. I will leave it there.

Ms S Bradley: Thank you. My point was covered, so thank you for that, Brian, and thank you for your continued patience.

I will go on to one other point that I have been deliberating on. It is about the financial effect of the Bill. I take the point that a lot of this may be subsumed by or moved from ongoing harassment cases, so there may not be a duplication of cost, because that cost would just be moved across. However, given the breadth of the offence of "threatening or abusive behaviour" at clause 2, especially, and of the stalking offence, and given the catch-all effect that those may have, do you think that there is any danger that the financial effect of the Bill could be underestimated?

Mr Grzymek: It is obviously hard to say. When you talk about the breadth of the offence, I am conscious that stalking is happening today and that people often come into the system after months or even years of potential abuse. Those cases are quite often picked up in a haphazard way. Some may get support through harassment legislation and others may not. Some will go back and forward and, because that stalking behaviour has not been addressed, it may well continue, so that the police become continually involved. I have certainly seen cases like that.

I am not absolutely clear that it will be the case that we will have a massive expansion of those cases. Because we are going for a public awareness campaign, I suspect that we might smoke out some cases that would not have come up, in which people just move accommodation or disappear, if you like, to get away from the stalker. I also think that, if we increase public awareness, we might pick up some cases earlier. On one level, that might front-load cases but, on another, if we pick cases up earlier and SPOs work, it might mean that we might head some cases off at the pass that would otherwise have had a time stream of costs for the system. Disruption of stalking behaviour at an earlier stage might eliminate the behaviour, so that people do not continue to stalk. We know of cases in which individual stalkers have gone from one victim to the next over a long period. That is another complication. On one level, you might find that more cases come forward but that we deal with those cases better and more effectively, which could reduce costs in the long run.

I hope that I noted earlier in the conversation that my expectation is that clause 2 — the offence of "threatening or abusive behaviour" — will not be a floodgate opening up to a vast number of cases. These will be cases in which a single act generates genuine alarm, fear and significant distress. We are not talking about someone just phoning somebody up and calling them names. We are talking about a significant sort of act that puts somebody in fear. That is a reasonable threshold. Although I expect that we will get more cases from that, some of those may be cases that, although clearly quite serious, fall short of stalking for some reason or other.

I think that there will be an increase in cases but that maybe the interim SPOs and the fact that, where serious stalking takes place, we have real and significant penalties — up to 10 years is a very significant penalty — will have a positive impact on stalking. That may incur increased costs at first but, if those three things work, that will hopefully mean that, in the long run, while there may not be savings, we use the money much more effectively and that there are better outcomes for victims.

I can give no guarantees about that. I am conscious that we have not got good figures at the moment, but I am very clear that there is a need for this legislation. The Minister and I have spoken to a number of victims, and there is certainly no doubt that we need legislation. From the debate in the Assembly, which must have been two or three years ago, I know that all the parties were supportive of creating this sort of offence. I therefore make no apologies for putting this forward in advance of there being hard financial figures across the board. Those figures will follow, but I suspect that the existing money that we spend on this will not be spent as well as it will be a couple of years downstream.

Ms S Bradley: Thanks, Brian. I do not disagree with any of that.

The Chairperson (Mr Storey): OK, members, if there are no more questions, I will draw this session to a conclusion. I thank Brian, Barbara and Andrew for their attendance, not only today but at previous Committee meetings, and for the information that they have provided. We look forward to further engagement with you over the coming weeks and months. Thank you.

Ms Compston: Thank you.

Mr Laverty: Thank you, Chair.

Mr Grzymek: Thanks.