Official Report: Minutes of Evidence

Committee for Justice , meeting on Wednesday, 12 November 2014

Members present for all or part of the proceedings:

Mr Paul Givan (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Mr Stewart Dickson
Mr S Douglas
Mr Tom Elliott
Mr Paul Frew
Mr Seán Lynch
Mr Patsy McGlone
Mr A Maginness
Mr Edwin Poots


Mr John Patrick Clayton, Children's Law Centre
Ms Natalie Whelehan, Children's Law Centre

Justice Bill: Children's Law Centre

The Chairperson (Mr Givan): I welcome Natalie Whelehan, policy officer, and John Patrick Clayton, assistant policy officer, from the Children's Law Centre (CLC). As is normal practice, the evidence session will be covered by Hansard and will be produced and published in due course.

At this point, Ms Whelehan, I will hand over to you. I appreciate your coming to the Committee today to elaborate on your written submission. We have the written report, so if you want to cover it briefly, we will ask questions based on the sections into which it is broken down. However, if you want to cover it all in your opening, we will proceed.

Ms Natalie Whelehan (Children's Law Centre): Thank you very much, Chair, and thank you to the Committee for inviting us to give evidence today. Given the length and scope of the Bill, we are just going to give a summary of our concerns, before proceeding to answer your questions.

As a bit of background, the Children's Law Centre is a children's rights organisation, and we are founded on the principles of the United Nations Convention on the Rights of the Child. We provide free legal advice and representation for children. We have a dedicated Freephone legal advice line for children, parents and carers called CHALKY, as well as a youth advisory group called youth@clc. We offer training and research on children's rights and make submissions on law, policy and practice affecting children. Within our policy, legal and representation services, we deal with a range of issues to do with children and the law, including the law as it pertains to some of our most vulnerable children, such as looked-after children, children in conflict with the law, children with special educational needs, and those with disabilities and mental health problems.

The United Nations Convention on the Rights of the Child is a set of legally binding minimum standards and obligations for all aspects of children's lives, which the Government have ratified. The Northern Ireland Executive, as a devolved Administration, has the obligation to deliver all the rights in the convention to children and young people. Legislative and policy developments in Northern Ireland should be taken forward in compliance with the rights enshrined in the convention.

Part 4 of the Bill deals with victims and witnesses. We are broadly supportive of that part, and we believe that it has the potential to improve the experience of child victims and witnesses in the criminal justice system. That is particularly important for children and young people, given that it is well acknowledged that they are more likely to be the victims, rather than the perpetrators, of crime.

Criminal records are dealt with under Part 5. We have a number of concerns about the divergence of the current criminal records regime from the main rehabilitative recommendation of the youth justice review. Recommendation 21 states:

"Policy and legislation relating to the rehabilitation of offenders should be overhauled and reflect the principles of proportionality, transparency and fairness ... diversionary disposals should not attract a criminal record or be subject to
employer disclosure ... young offenders should be allowed to apply for a clean slate at age18".

In the interests of ensuring that the correct balance is struck with the protection of the public, it recommends:

"for those very few young people about whom there are real concerns and where information should be made available for pre-employment checks in the future, a transparent process for disclosure of information, based on a risk assessment and open to challenge, should be established."

We believe that that approach is in line with international children's rights standards, strikes the right balance between the rights of young people who offend and the protection of other children and young people, and has the rehabilitation and reintegration of young people at its core.

Our main concern about the retention and disclosure of criminal records is that their disclosure can prevent children and young people from accessing education, training and employment, which are vital elements in successful reintegration into society and in preventing reoffending. The seriousness of excluding children and young people from education and employment opportunities must be recognised. Youth unemployment in Northern Ireland is at almost 20%, and there are currently 32,000 young people aged between 16 and 24 here who are not in education, employment or training (NEET). Research has found that long-term unemployment is having a dramatic, detrimental impact on the mental health of our young people, with a recent study finding that a third of long-term unemployed young people have contemplated taking their own life and 40% of jobless young people have faced symptoms of mental illness as a direct result of unemployment.

We therefore have concerns about the current filtering arrangements, which have been in place since April of this year. Under those arrangements, Access NI will filter some old and minor convictions and other criminal information, such as cautions, from standard and enhanced criminal records checks. However, all informed warnings, cautions, and details of diversionary youth conferences and convictions held on criminal record databases will be considered for disclosure in the first instance. Not since April 2011 has Access NI routinely disclosed diversionary disposals on certificates. Although some cautions, diversionary youth conferences or informed warnings for certain offences will be filtered after a time, some will not be. We are therefore very supportive of the Department's intention to bring forward amendments to the Bill to provide for an independent review mechanism, which aims to make the current filtering regime more compatible with article 8 of the European Convention on Human Rights (ECHR). We are engaging with the Department on that review mechanism, and we wish to see it reflecting recommendation 21 of the youth justice review, including non-disclosure for diversionary disposals and disclosure of criminal records information relating to the offending of children and young people in exceptional circumstances, where the offence is sufficiently serious and relevant and where there are concerns for public safety were the information not to be disclosed.

Clause 37 provides that children under the age of 16 should not be subject to criminal records checks except in prescribed circumstances. We welcome any limitation of the circumstances in which criminal records checks can be sought against children. However, we wish to see that extended to the age of 18, in line with the definition of a "child" under the United Nations Convention on the Rights of the Child.

We also welcome the proposed amendments to the test that is applied by the police when deciding whether information should be included on an enhanced criminal records certificate in order to make the test for disclosure of information such as police intelligence more stringent. Decisions about the disclosure of police intelligence must be consistent, transparent and compliant with international children and human rights standards. As with diversionary disposals, we wish to see the non-disclosure of soft intelligence up until the age of 18.

We support the intention to produce a code of practice for PSNI criminal records staff to ensure consistency in decision-making and also to publish the code of practice, which we believe must be subject to public consultation, in line with section 75 of the Northern Ireland Act 1998.

My colleague John Patrick Clayton will now take the Committee through the remainder of the Bill.

Mr John Patrick Clayton (Children's Law Centre): Thank you, Natalie.

Part 6 of the Bill proposes the extension of the use of live video links in court proceedings. We have a number of serious concerns about the use of live links in criminal cases that involve children and young people, including the impact that their use may have on the child's right to a fair trial and to be heard in judicial and administrative proceedings affecting them. We are concerned that extending the use of live links in children's criminal cases has the potential to remove any personal connection that would otherwise have been established if the child had been present in court, including with the child's own legal representative, which has implications for establishing informed consent. It is recognised that effective communication with children who come into contact with the criminal justice system is challenging and that barriers can exist. If the child is not present in court, his or her legal representative, and the court itself, will be disadvantaged in being able to determine the competency of the child to give instructions, understand the implications of the hearing and participate effectively. The need for children to be able to participate fully in and understand proceedings in which they are involved has been identified as being fundamental to guaranteeing their right to a fair trial under article 6 of the European Convention on Human Rights.

Several of the new scenarios in which live links may be employed under the Bill require the consent of the accused person. The Department has undertaken to establish enhanced procedures for young people involved when considering the use of a live link to ensure that informed consent is present, but we are somewhat disappointed that those firm safeguards had not been put in place before bringing forward the legislation. Given the importance of a child's right to a fair trial, we wish to see the Department urgently commissioning independent research into the use of live links in proceedings involving children in order to examine the impact on the child's ability to participate and understand the court proceedings, including a comparison of the outcomes of children and young people's cases that have been heard via live link and those where the child was present in court.

We also wish to emphasise the need to ensure that the use of live video links is always driven by the interests of justice, and not by what is cost-effective. It is vital that administrative ease or financial expediency never take precedence over the rights of often extremely vulnerable children and young people.

Part 7 proposes the creation of violent offences prevention orders (VOPOs). Those will be civil orders that will allow the courts to place conditions on the behaviour of those convicted of violent offences. Breach of a VOPO, as we have been calling them, will be a criminal offence that may result in up to five years in prison. That will draw young people further into the criminal justice system and is in conflict with the principles of reintegration and rehabilitation, as clearly detailed in international children's rights standards. We believe that the imposition of additional conditions through the application of VOPOs to under-18s is unnecessary, as violent young offenders who are released from custody should already be subject to conditional release on licence. Moreover, the Parole Commissioners will have directed the release of the young person only when satisfied it is no longer necessary, for the protection of the public from serious harm, that the young person should be confined. Similar provisions in England and Wales do not apply to under-18s, and we do not believe that the Department has provided any evidence to suggest that VOPOs are necessary for children and young people in Northern Ireland.

Clauses 77 and 78 relate to the issue of encouraging early guilty pleas in Northern Ireland. The CLC wishes to see adequate safeguards and protections being put in place to ensure that proposals aimed at tackling delay, such as encouraging early guilty pleas, do not interfere with a child's right to a fair trial and that safeguards and protections are put in place to ensure that young people plead guilty only where appropriate and appreciate the consequences of doing so. We think that that is particularly important for vulnerable young people, such as children with learning disabilities, those with additional needs and/or mental health problems, and those for whom English is an additional language.

The CLC supports the proposed amendments to the aims of the youth justice system to include the best interests of the child as a primary consideration.

Thank you for allowing us the time to provide evidence to you today. We are happy to answer any questions that Committee members may have.

The Chairperson (Mr Givan): Thank you very much, Natalie and John.

Members, the Committee Clerk has a good paper that breaks down each part of the Bill and contains the information from the Children's Law Centre. What we will do is take each section in turn. If members want to ask a particular question, they should indicate. We will try and curtail it to that particular section.

The first section is to do with the single jurisdiction issue. A general question that I will put to you is around the potential drawbacks that may flow from having a single jurisdiction that may need to be addressed.

Mr Clayton: Those proposals seem to be quite driven towards efficiency in the courts system. As such, our concern is the interests of young people who may be appearing in court. Some of the concerns that we have raised are around, for example, young people possibly having to travel quite large distances to attend court. We have previously suggested to the Department that it needs to consider how that can be mitigated, perhaps by providing for the cost of travel or by providing travel options.

The other concern that we have is how decisions will be made around determining where court business will be allocated. Those are really our two broad concerns about that proposal around the single jurisdiction.

The Chairperson (Mr Givan): OK. Mr Maginness?

Mr A Maginness: My question is really on a later section, so perhaps I should not.

The Chairperson (Mr Givan): I will come back to you. Is your question on the single jurisdiction, Mr Lynch?

Mr Lynch: You mentioned that you had concerns about the video links in cases with young people. Can you elaborate on that?

The Chairperson (Mr Givan): Seán, I will come back to the live links as well.

Mr McGlone: I am seeking a wee bit of clarity around this. In your submission, you refer to the number of those who may be disadvantaged as a consequence of this:

"Even if the numbers affected will be small, as suggested by the DoJ, the potential consequences for children who may not be able to attend court are so grave that they constitute a major impact on their enjoyment of equality of opportunity."

Can you tell me what you mean by that? It is just that I am picturing a situation. There are courts closing in a lot of the local towns. A court can be an intimidating place anyway, even to go along to present to a social security commissioner on something that is not criminal at all. I am trying to establish whether, or why, children and young people would think that their local courthouse was less intimidating than, say, one in Antrim, Belfast or Dungannon. That is the first thing.

To flip it around to the second thing, if a young person has such major issues that he or she cannot attend court — disability issues, or whatever it might be — is there such a thing as a domiciliary hearing that can be considered in those really exceptional cases? I do not know the answer to that second one.

Ms Whelehan: I suppose that our major concern here is that we see real potential for adverse impact to be suffered by young people as a result of a lack of income that would facilitate their paying for transport to attend court. That is the main thing. We were expecting, in the consideration of the proposal by the Department, to look at measures that mitigate that adverse impact. We do not feel that that has been done effectively. We are talking about provision of transport or paying for transport to get young people to court. I do not think we are suggesting that any court is more or less intimidating than any other. Court is fairly intimidating for all young people, regardless of where it is. It is really about making sure that young people have access to justice and that, where there are barriers to that access to justice, those barriers are addressed by the Department.

I am not sure about the domiciliary court. That is not something that has been raised. Really, from our perspective, it is about mitigating that adverse impact, because we do not want to see young people getting into more trouble or being drawn further into the criminal justice system because of a failure to facilitate their attending court. That is our main concern. We would like to see access to justice across the board, for all children and young people, and a facilitation by the Department where there are barriers to that.

Mr Clayton: The proposals that were initially consulted on some years ago discussed the possibility of the arrangements being underpinned by some sort of administrative framework or some sort of policy to determine how court business would be distributed. The concerns that you are talking about, Mr McGlone, are certainly the relevant issues that have to be considered. If one of the parties to the proceedings had a disability or an issue that made travelling to a certain location very difficult, that would have to be considered. To our mind, we would like a little bit more information about where the proposal is at around creating a policy or administrative framework to determine how the cases will be allocated.

Mr McCartney: Thank you for your presentation. Your last comment may have answered my question. As I read it, you are not opposed to the idea of a single jurisdiction, but, where there are barriers and access issues, you believe that they should be addressed.

Ms Whelehan: Yes. For us, the issue is fundamentally about access to justice. It is about identifying any barriers to ensuring equality of opportunity in the enjoyment of access to justice for all children and young people and about recognising the types of young people who are in conflict with the law. The fact is that the majority of young people who come into contact with the law are from socially and economically deprived areas and may not have the ability or means to pay for transport, etc. This is to ensure, if this decision is taken, that children do not suffer as a result and are not drawn into the criminal justice system through no fault of their own and that mitigating measures are put in place to guarantee access to justice for all.

The Chairperson (Mr Givan): OK, no other members have questions on the first section. The next section is on prosecutorial fines. Does any member have a question on that? No?

The next section is on victims and witnesses. Is there anything in that section that members want to pick up on?

Mr McCartney: As I read it, you feel that there are issues that need to be addressed. Are you saying that those should be in the Bill or that provision should be made to deal with them administratively?

Ms Whelehan: Both. We feel very strongly about victims and the need to support child victims and witnesses. The United Nations Committee on the Rights of the Child, in its concluding observations in 2008, was very clear about the need to support child victims and witnesses. We are very broadly supportive, as I said in the oral evidence on this part of the Bill, because we think that there is the potential in this part to improve the experience of victims and witnesses in the criminal justice system.

We think that it is a welcome move also to address some of the concerns expressed by the Committee on the Rights of the Child. On the issue of whether there should be something in the Bill, we would support an amendment to clauses 28 and 30 to make specific reference to the best interests of child victims and witnesses. We would like to see that included in the victims and witnesses charter, which would be in keeping with article 3 of the United Nations Convention on the Rights of the Child and the EU directive on the minimum standards for the victims of crime.

That would be our main concern when it comes to putting something in the Bill. Obviously, implementation will be key, and we will be working with the Department to make sure that children and young people are given information that they understand and child-accessible information in line with the United Nations Convention on the Rights of the Child and that there is adequate attention paid to the care and recovery of victims, etc. We would monitor the implementation of that.

Mr McCartney: As far as compliance with the charter is concerned, are you happy that the provisions are robust enough and that compliance issues regarding the statutory agencies are in there?

Mr Clayton: We put in a separate response to the consultation on the victims charter, which was going on at the same time as the Committee was seeking evidence on the Bill. As Natalie said, some of the issues that we raised were around, for example, ensuring that information provided by agencies is accessible to children and young people and that they can understand what is going on at all stages in the process. Those obligations flow not only from the United Nations Convention on the Rights of the Child but from the EU directive. We made some comments to the Department around that mainly in our response. It is about ensuring that those issues are addressed by the agencies that will be implementing the charter.

Mr McCartney: I know that we will be hearing other presentations. Do you have any issues with the definition of a victim for the charter?

Ms Whelehan: It is not something that we have raised.

The Chairperson (Mr Givan): Do members have any other questions on this section? The next section is on criminal records.

Mr McGlone: If I picked it up right, in your opening remarks you mentioned that cautions, informed warnings and diversionary youth conferences are now disclosed routinely, which may not have been the case previously. Do you have any concerns that choosing that route might impact on young people in the future?

Mr Clayton: We do have some concerns around that. Our sense, broadly, in the youth justice system at the moment, is that the use of diversion and the measures that you have just referred to is on the rise. The youth justice review picked up that there are concerns about children and young people understanding fully the implications of accepting those diversions. We are also conscious that the Department is doing a lot of work on a fairer, faster justice programme. Part of that is based around rolling out youth engagement clinics. The idea is that cases suitable for diversion will be diverted out of the formal court system more quickly. Our concern is about making sure that young people are fully aware of the implications of accepting a diversion. From the information we have received about the youth engagement clinics pilots, we are concerned that maybe that is not always the case. The information that we have received is that, in the vast majority of cases going through the clinics, young people do not have a legal representative there. We have some concerns about whether young people always fully understand the implications of accepting a diversion and the fact that it can be disclosed in future. Our worry is that that could potentially undermine the purpose of diversion generally.

Mr McGlone: I hear your concerns very clearly, but how would you do it differently to ensure that people and their rights are protected?

Ms Whelehan: We are concerned that recommendation 21 of the youth justice review has been moved away from in the current arrangements. That struck the correct balance between the rehabilitation and reintegration of young people who offend and the protection of the public. The Children's Law Centre is a children's rights organisation, so, obviously, we are supportive, first and foremost, of the need to protect vulnerable children and young people. We believe that the best way to protect children and young people and the public in general is to ensure the rehabilitation and reintegration of young offenders. That is the best way to protect the public from reoffending in the long term.

The review mechanism is really welcome because there needs to be a system in place for decisions to be taken about whether something genuinely needs to be disclosed, where there is an issue of public protection. Those decisions need to be taken in line with international standards and the recommendations of the youth justice review. That would bring us back further towards international children's rights standards and better outcomes for all.

Mr McGlone: So, really, what you are saying is that there should be some sort of mechanism in place before details are routinely disclosed?

Ms Whelehan: Yes. We do not think that anything should ever be routinely disclosed. There should be a weighing up of whether the offence is serious enough, whether it is relevant and whether there are genuine concerns for the safety of the public if it were to be disclosed.

The issue for us is that young people are being denied access to employment and training opportunities in Northern Ireland. That is having major impacts on the ability of young people to be able to progress with their lives. It is working in conflict with preventing reoffending, and that, in itself, is having an impact on public protection. In order to strike the correct balance, there needs to be a system in place so that young people's minor offending, where there is no risk to public safety, is not disclosed unless disclosure can be justified.

Mr McCartney: I want to have this clear in my head. From what you say in bold type at point 6.5 of your presentation, I gather that you feel that recommendation 21 of the youth justice review is not reflected in the Bill, and you feel that it should be.

Ms Whelehan: It is not reflected in the Bill at the moment. The current filtering arrangements have been in place since April of this year. We welcome the proposal to bring forward clauses that will introduce an independent review mechanism. We would have liked to have seen those clauses. Ideally, we would have liked to have been consulted on what those clauses would look like. There is real potential in the review mechanism to bring it much closer to what recommendation 21 said. We would like to see the non-disclosure of diversionary disposals and the disclosure of conviction information in exceptional circumstances for under-18s where the offence is sufficiently serious, it is relevant and there are concerns for public safety if the information were not to be disclosed.

Mr McCartney: Are you saying that a proper and efficient independent review could bring us into line and —

Ms Whelehan: We believe that it has the potential to do so. We are working with the Department on that, and we have had very positive engagement. We believe that those elements have to be central to the review mechanism to bring it in line with recommendation 21 of the youth justice review and international children's rights standards.

Mr McCartney: In relation to clause 37, your position is that the definition of a child should be extended up to the age of 18.

Ms Whelehan: Yes. We think that that is more in keeping with children's rights standards.

Mr McCartney: You mentioned in your presentation the application for people to have what you refer to as their slate wiped clean at 18. How many people at 18 progress with their slate not cleaned? Is it a large number of people?

Ms Whelehan: At the minute, there is no provision in place to allow for children to apply to have their slate wiped clean. The filtering mechanism at the minute is a framework; some will be filtered out and some will not, depending on whether they are on a list of specified offences.

Mr Clayton: Obviously, different periods of time apply depending on the nature of the disposal.

Ms Whelehan: The majority of young people who offend, unless it is a non-specified offence or just one conviction, will continue to have that on their record.

Mr McCartney: Do think that there should be some provision to tighten that?

Ms Whelehan: Yes. The potential is in the review mechanism. We are working with the Department. We see a real opportunity to draw some of that back so that there is not a detrimental impact on the ability of young people to be able to access employment, training and education, all of which are massively important in terms of their progression and the reduction of offending.

Mr McCartney: Do you know of any instances of where people are denied access to, specifically, training as a result of, say, a conviction?

Ms Whelehan: Yes. We take calls on all issues that impact on children's lives through our CHALKY advice line. It has numerous examples of young people, particularly at this time of year, who phone up about courses that they cannot get on to or training that they are not able to access because something has come up on a criminal records check. They look to us to provide advice to them as to how they challenge that and what they should do about that.

Mr McCartney: Is that in further and higher education institutions?

Ms Whelehan: In all courses and in all kinds of education.

Mr Douglas: Thanks very much for the presentation so far. I come back again to what Raymond said about young offenders being allowed to apply for a clean slate at age 18. In my constituency, over the past couple of years, particularly because of the rioting and all, I see, far too often, parents coming in because a young person has been arrested, and it is a mark on them for the rest of their life. Maybe Raymond mentioned this, but do you have any idea of the number of young people, even in the last couple of years, who have fallen into that category across Northern Ireland, never mind east Belfast?

Ms Whelehan: I do not have any numbers in relation to that, but the point that you raise is really important. It is about how young people can be drawn into the criminal justice system for something that, ordinarily, they would not have been involved in. That is a real concern of ours. One of the issues in relation to filtering is that, if a young person has more than one conviction, that will never be filtered out, regardless of what those convictions are for. If, for example, something happens with a young person on an off-night that is not characteristic of that young person's behaviour, that will always be disclosed on an enhanced criminal records check. We do not think that that is fair. That is what the review mechanism can do; that is its potential. It will allow for the circumstances of each individual case to be considered and a decision taken on whether the child poses a risk to public safety. That is why it is really important that we work on the review mechanism to try to ensure that young people do not bear the burden of foolish mistakes or misdemeanours for the rest of their life.

Mr Douglas: Where would this stand at an international level if we were to agree that there should be a clean slate at age 18? Over the years, I have been involved in programmes taking kids to the likes of Canada and America. Once they get a record, they have not a chance of going. That could be a young lad or young girl who threw one stone and who had a clear record up until they were 16 or 17 or whatever. So, where would this stand internationally with the likes of Canada and the United States?

Mr Clayton: I think that we look more to the international standards such as the United Nations Convention on the Rights of the Child (UNCRC) and other international standards. Those are very in favour of the ability to attempt to wipe the slate clean. We are guided more by that than specific systems that may exist in other countries.

Ms Whelehan: It is difficult to say about America in particular. Its immigration legislation may ask questions that you have to answer that do not reflect whether something will appear on an enhanced criminal records check. I suppose that that is the difficulty. Based on compliance with international children's rights standards, it would be compliant to wipe the slate clean.

Mr Poots: What does the Children's Law Centre believe should be disclosed?

Ms Whelehan: Our view is that the position on under-18s should be that of the UNCRC. That is that anything that should be disclosed should be serious enough, it should be relevant and there should be a threat or a risk to the public if it were not disclosed.

Mr Poots: What is meant by "serious enough"?

Ms Whelehan: That is a good question. On serious offending, I am not sure how I can answer that.

Mr Poots: Mr Douglas raised the issue of people who are engaged in unlawful activity around demonstrations. If someone were to get a caution for having been in attendance at that and for some participation, that might be one thing. If someone had thrown petrol bombs at police, that would be a completely different matter. I have a degree of sympathy with what you are saying in that it is important that you ensure that young people can move on and you do not push them back towards criminality, but I would like some clarity. If we are to produce legislation, we need clarity.

Ms Whelehan: Obviously, the independent review mechanism will have a role in determining what is serious enough. It is our view that decisions would need to be taken on a case-by-case basis and that the independent review mechanism would make those decisions. Obviously, there will be scope, and guidance will need to be produced. We will be talking to the Department about what that guidance might look like, and we will be feeding into that. Obviously, that will not be in the Bill.

Mr Poots: We need to be very cautious here, because if a young person had been involved in sexual offences, for example, and that was not disclosed, and, consequently, they ended up perpetrating another action against someone through employment or elsewhere —

Mr Lynch: Are we talking about diversionary issues here?

Mr Poots: We are talking about the disclosure of criminal records.

Ms Whelehan: Form our perspective, first and foremost is the protection of children and young people and the public. As a children's rights organisation, that is our main priority. We do not envisage any circumstances where somebody would be in a position where something was not disclosed because a mistake had been made and for them to go on to further offend. I certainly imagine that sexual offending and young people who pose a threat to the public, as in the example that you have given, would be a case for disclosure of the information because, obviously, there would be a threat to the public.

Mr Poots: It may have been a low-level sexual offence from when they were younger, but it may indicate that there is an issue with that particular person. It may not be a high-level offence that was committed at the early part, but it may be someone who is leading up to doing something much more significant.

Mr Clayton: Obviously, there are concerns about those kinds of issues. Obviously, there can be a very difficult decision to be made in certain cases. I think that that is right. It would be very much done on a case-by-case basis, and I think that it would have to be based on an individual risk assessment being undertaken. So, it is difficult, at this stage, to be definitive, but it is absolutely right to be aware of those concerns and be mindful of them. As Natalie says, those kind of issues, hopefully, can be addressed through an independent review mechanism.

Mr A Maginness: I want to ask about the point that was raised by Mr Poots and in Mr Lynch's intervention. We are talking about criminal records, but I thought that the main focus of your submission was in relation to diversionary issues with young people. Am I right in coming to that conclusion?

Ms Whelehan: Yes, one of our major concerns is that, prior to 2011, diversionary disposals were not routinely disclosed on criminal record certificates, and now, with the introduction of the filtering arrangements, all disposals are considered in the first instance for disclosure. Some of those will be filtered out and some will not be filtered out. It is our view, and the international standards are clear, that diversionary disposal should not be disclosed on criminal records checks.

Mr A Maginness: Yes, and the point is that they are increasingly used in the new regime of dealing with young offending and, therefore, there is a greater volume of those issues arising. But your basic position is that there should be no disclosure whatsoever in relation to diversionary measures?

Ms Whelehan: Yes.

Mr A Maginness: You would not make any distinction in relation to any diversionary measures?

Ms Whelehan: We are founded on the United Nations Convention on the Rights of the Child, and that is its position. All our policy positions are informed by what the convention says. Where there are genuine concerns about public safety, that will be for the independent monitoring mechanism to consider in relation to disclosure.

Mr A Maginness: So, you are saying that there is a failsafe mechanism, whereby, if there is some sort of risk to the public, that could be disclosed in certain circumstances.

Ms Whelehan: We have to remember that the police have the ultimate say. If something is relevant and ought to be disclosed, the police will decide that it should be disclosed regardless.

Mr Clayton: That test will be amended under the Bill. Natalie is absolutely right; that mechanism already exists.

The Chairperson (Mr Givan): Mr Maginness, you indicated that you want to comment on live links.

Mr A Maginness: I think that Mr Lynch is first, Chair.

Mr Lynch: You mentioned concerns about live links in your presentation. Could you elaborate on that?

Ms Whelehan: Our major concern in relation to live links is that we are worried that the removal of young people from being present in court may have a detrimental impact on the ability of young people to participate in and understand proceedings in which they are involved. As we said in our presentation, the twin concepts of participation and understanding are so vital to ensuring that the child enjoys the right to a fair trial under article 6 of the European Convention on Human Rights. The European Court of Human Rights has also identified those as vital elements.

We are concerned because of the profile of children and young people who come into contact with the criminal justice system and the higher proportion of young people who have special educational needs, learning difficulties, mental health problems and communication problems. That was raised with the Committee by the Youth Justice Agency and the speech and language therapists in September 2013, and 54% of young people who were assessed by the Youth Justice Agency were found to have communication problems, and 22% of those were found to need the help of a speech and language therapist to communicate. So, our issue is that removing young people even further from participation in their own court case may further hinder their ability to participate in and understand the proceedings in which they are involved.

The European Court of Human Rights has been clear in case law about the need for courts to put in place additional measures to ensure that the child receives a fair hearing, can participate and understands, and we have seen that replicated in Northern Ireland as well. The Lord Chief Justice here has issued a practice direction about the need to assist young defendants to participate in and understand the proceedings that they are involved in, and he has also reminded the courts about the continuing duty on them to explain each step of the trial to the young person in a way that a young person can understand.

In our written submission, we have referenced research about some concerns about live links, such as technical difficulties and young people feeling that they have been removed from the process and have not been able to communicate effectively with their legal representatives. Some of them felt confused by the outcomes of the cases. That causes us major concern, and we think that independent research needs to be commissioned by the Department to tell us, once and for all, the impact on a young person's ability to participate in and understand the proceedings in which they are involved and also in relation to the outcome of the case. There needs to be some comparison, we believe, between the outcomes of cases where young people have participated in cases via live link and where young people are present in court. It raises serious question marks around the ability of a young person to give informed consent to appearing via a live link if they are unaware of what the likely impact will be on the outcome of their case.

While we understand that live links are more cost-effective, more efficient and more convenient, our concern is that the use of live links should never be driven in the interests of expediency or convenience but should be about the best interests of the child and in the interests of justice.

Mr A Maginness: The Lord Chief Justice's practice direction, which obviously carries a lot of weight, means that the judges and the courts are aware of the difficulties that you have quite properly highlighted. Is that not sufficient protection for young defendants in courts? Is your approach not a belt-and-braces exercise in terms of you maybe being overly concerned about the issue?

Ms Whelehan: The research shows that the use of live links can impede a young person's ability to participate in proceedings. They have felt removed from the case, have not been able to fully understand what has been going on and have sometimes not been able to communicate with their legal representative. Our concern is that the use of live links will impede the ability to properly consider and properly comply with the Lord Chief Justice's practice direction. Our concern is about the removal of young people from the court case, and the fact is that we do not know what the impact is. We need to know.

Mr A Maginness: If a young person is physically in the court, access to counsel or a solicitor is limited in any event, and, even if they are in the court with their solicitor nearby, they do not necessarily understand what is going on anyway. So, what is the difference?

Mr Clayton: You have to consider that, up to now, live links have been used in certain proceedings, and, whilst issues have been highlighted in their use involving children and young people, our concern is that there may be a decision to extend the use of live links to perhaps cover differing forms of proceedings that they have not been used in before. One example is breach proceedings. If my memory serves me correctly, I think that a young person may be brought back before a court for breaching probation requirements, for example. Before you look to extend it into other realms of the youth justice system, we want to be more satisfied that it is not having the kind of impacts that we fear it could have, and some of the information indicates that it is having, in certain cases.

You are right that it is welcome that there is a recognition by the Lord Chief Justice and in case law that you have to make sure that the young person can participate and understand. We are concerned that we are not entirely clear, in the absence of independent authoritative research, about the level of impediment that currently exists, and we think that should be established and benchmarked before you look to put live links into other areas.

Mr A Maginness: This is my last point, Chair. Some people would argue that the use of live links is better than the young defendant being physically present in court, because it is less intimidating, less frightening and less traumatic for the young person. What do you say about that?

Ms Whelehan: I think that is right. We do not disagree with that. It has to be about informed consent and a young person agreeing to participate in proceedings via a live link. The key is that, until we have research that compares the outcomes of cases of young people who are physically present in court and young people who participate in their cases via a live link, we do not believe that informed consent can be given. If it is the case that there is no difference and the research tells us that, that is fine. We have no problem with that at all. It is a young person's decision and it is entirely up to them, but it is about making sure that, when a young person gives informed consent, they know what they are consenting to, and it is not just about it being less intimidating. If there is going to be a serious impact on the outcome of their case, we need to be aware of that.

Mr McCartney: In the earlier discussion around a single jurisdiction, you were right to say that you do not want people to be dragged unnecessarily to far-off places, with the cost in travel, and live links are one way of trying to prevent that in some circumstances, but the issue is informed consent. So, you are not opposed to live links as long as the young person, and, obviously, their legal representatives, are satisfied that the interests of justice are not undermined?

Ms Whelehan: Yes. If it is in the best interest of the child, the child is happy to do it and we know that it is not going to have a detrimental impact on the outcome of their case, that is fine, but we are not in that position at the moment. That is our concern. We do not know what the impact is on participation and understanding, and both of those are absolutely vital to ensuring that the child's right to a fair trial is upheld. That is where we are. I think it is too soon for live links. We think that there is serious potential for that to impact on the child's right to be heard under article 12 of the UNCRC and on the child's right to a fair trial. Those are pretty serious considerations.

Mr Clayton: It is also a concern, as outlined in our written evidence, that it appears to us that some of the proposals will not actually require consent. That would cause us some concern.

Mr McCartney: If there is informed consent, the issue of live links is — I will not say taken care of — less of a concern?

Mr Clayton: Provided it is informed consent, I think it goes some way to address the issue.

Mr Elliott: To be fair, most of the issues around my queries have been addressed, although I am still a wee bit confused about whether you would be content with live links or not. There are a couple of issues. How do you suggest that they may not be able to communicate with their legal advisers properly with live links?

Mr Clayton: Part of the concern around that is based on some of the experience that we have heard of issues with the live links connecting and some of the technical issues that might occur. We envisage that it could be easier in some circumstances if the child was physically present and transported to the court. If they were in custody, for example, you could only see live links being used in those circumstances. If they were transported to the court, they would have the opportunity to consult with the legal representative in person. Some young people, when asked, have expressed a preference for that. That is where that concern comes from.

Mr Elliott: OK. I think you prefaced the rest of it when you said that it is based on research and you need more research around it. I agree with Mr Maginness, and it has been suggested to me, that some people would be more content not being in the court. I assume that research would say that some people are more content and some people are not. I think you are going to get a mixed bag there. Just because a young person would agree to a live link or going to court, that does not always mean that that is the best for them; they may find the opposite whatever way they do it.

Ms Whelehan: That is right. That is what we are trying to get at.

A young person may think that they want to appear via live link because of how intimidating the courtroom is, the length of time it takes, the transport, the hanging about, etc. However, we are not sure about the impact that appearing via live link will have on the outcome of a case or the ability of a child to participate and communicate, and we need to be aware of all those factors before we can say, one way or the other, what should be done and what is in the best interests of the child in that particular set of circumstances. So, I think that that is right.

The Chairperson (Mr Givan): No other members want to speak on the live link issue. Let us turn to violent offences prevention orders.

Mr Lynch: John, you mentioned that those orders do not apply in England and Wales to under-18s. What is the rationale for the Department proposing to introduce them here?

Ms Whelehan: As we stated in our evidence, VOPOs are civil orders, and they allow the courts to place conditions on the behaviour of violent offenders. Those conditions will instruct somebody to do something or refrain from doing something, and the breach of a VOPO is a criminal offence that can result in a sentence of up to five years in prison. Our concern is that it will draw young people further into the criminal justice system, and that it is in conflict with rehabilitation and reintegration.

As you say, similar provisions in England and Wales do not apply to under-18s. You ask what the Department's rationale is in proposing to apply VOPOs to under-18s. We certainly have not seen any evidence to suggest that VOPOs are necessary in Northern Ireland, and we say that for a number of reasons. We understand that there would be a very small number of young people each year who would be eligible for a VOPO in the first place and, secondly, the Department has told us that VOPOs would be sought for only for a very small proportion of that small number of under-18s, if any.

There was the consultation in 2011, wherein the Department outlined its intention to introduce orders similar to those that exist in England and Wales which, as I said, apply only to adults. It was not proposed in that consultation to extend the orders to under-18s and we are unaware of any respondents to the consultation exercise who asked or requested the extension of VOPOs to under-18s.

After the consultation, we were notified that the Department intended to extend VOPOs to under-18s. It is our understanding that the Department's rationale for that is that some of the criminal justice agencies suggested it. One of our concerns is that, because the consultation did not envisage extending VOPOs to under-18s, we do not think that young people have been adequately considered in that consultation.

Obviously, we are concerned that these are civil orders, the breach of which is a criminal offence, so it will blur the lines between civil and criminal law. At this stage it is unclear, because this is a civil order, whether, for example, hearsay evidence and the evidence of professional witnesses would be admissible. We are not sure but we think it is the case that the lower, civil standard of proof will apply. Also, we foresee circumstances where, potentially, a child would be afforded anonymity for the criminal act, but that reporting restrictions might not be guaranteed in the granting of a VOPO, which could lead to the identification of the child. So, there are quite a lot of issues.

Mr Clayton: I will just add to what Natalie has said. One thing we tried to tease out in our written evidence is that we think that VOPOs are unnecessary and somewhat disproportionate, because there are already orders that courts can impose when young people are found guilty of violent offences, and we have outlined some of those.

Certainly, with some of the orders that are specifically for violent offences under the Criminal Justice (Northern Ireland) Order 2008, the courts have to decide whether to impose that sentence, on the basis that the young person, once the Parole Commissioners are satisfied that they no longer pose a serious risk, will be released on licence and on conditions anyway.

One of the issues we raised with the Department previously was how those systems can interact. Our concern is that you could have a situation where a young person is under one set of conditions, through their licence, and have a second set of conditions imposed on them through a VOPO. Experience in other areas, such as bail, has shown us that, where more and more conditions are imposed on young people — mainly due to issues around their understanding of the nature of the conditions given and the multitude of conditions involved — that it can lead to them breaching those conditions. We would be similarly concerned about VOPOs, given some of the consequences that Natalie has outlined for being found in breach of one.

The Chairperson (Mr Givan): What is the alternative to using the VOPO?

Mr Clayton: Alternatives are already available. That is one point that we have tried to make in our written evidence. If there are circumstances in which a young person, or any person, is found guilty of a violent offence, under the Criminal Justice (Northern Ireland) Order 2008, then the courts can impose an indeterminate custodial sentence or an extended custodial sentence, for example. With those sentences, there is a licence requirement on the person's release; so, they would be released on condition in any event. As I understand it, if they are found to have breached those conditions, they can be recalled to custody. So, we think that there is already an alternative available.

One other point we have also tried to highlight is that the person would only be released from custody once the Parole Commissioners have decided that it is no longer necessary for the protection of the public from serious that they should be confined. We think that there is already a framework in place that could assist in those circumstances.

Mr McCartney: I have a number of questions. Who makes the application for the VOPO?

Mr Clayton: As I understand it, under the Bill, I think that the Chief Constable of the PSNI would mainly make the applications. He is certainly one of the parties that can make an application.

Mr McCartney: If there is a situation where a 17 year old is convicted of domestic violence, are the probation conditions enough to restrict them from access to the person that they first offended against?

Mr Clayton: First, it would depend on the nature of the offence for which they were convicted. To qualify for a VOPO, the offence has to be on one of the lists under the 2008 Order. They are quite serious violent offences. That is the first consideration.

Secondly, it would depend on the nature of the punishment that the young person was given in court. If, in the circumstances you talk about, there is probation, then there would be conditions attached to that probation. If it was found that the young person was not abiding by those conditions, they could be brought back to court to be dealt with alternatively. That would be the same with a host of other orders, such as a youth conference order or a juvenile justice centre order; an element of supervision is built into the young person's release back into the community, even short of the orders that I have mentioned under the 2008 Order for the very serious violent offences.

Mr McCartney: So, if there was a conditional release, say, in relation to a case of domestic violence, there would be restrictions, or the possibility of restrictions, being placed on a person that could have the effect of a non-molestation order.

Mr Clayton: It is interesting that you mention the non-molestation order. That is potentially an avenue that a person in that domestic violence scenario could go down as well.

Mr McGlone: I am trying to get my head around what a VOPO delivers that the courts do not. I understand that there can be some very violent people out there. If someone is at the stage of being so violent that society in general, but maybe specifically an individual who they have assaulted often persistently in whatever shape or form, requires protection, then what protection does a VOPO provide that the courts do not provide already? Where are VOPOs currently in use, and can you share any experiences of how well or otherwise they have worked where they are in use at the moment? Perhaps you cannot do so.

Mr Clayton: To answer your last point first, I think that, as Natalie said, the violent offender orders that exist in England and Wales do not apply to under-18s. The point that you make overall, if I understand your question, which is what will these add, is something that we are quite unclear about ourselves because the nature of the conditions that could be attached to a VOPO is not really in the Bill. I think that it would exclude people from certain places or locations, for example.

As we said, we think that this can be dealt with, possibly, through other avenues that already exist. That goes back to our point that we think that VOPOs, potentially, are very unnecessary in Northern Ireland. As Natalie said as well, the Department indicated to us that extremely small numbers of young people would be eligible in the first place and that, within that number, the number of young people to whom a VOPO would be applied would be very small again. It goes back to our point that we are not convinced that the case has been made to extend them to under-18s.

Mr Frew: We now have a VOPO, and we have had a sexual offences prevention order (SOPO). Do those apply to under-18s?

Mr Clayton: As I understand it, SOPOs do apply to under-18s?

Mr Frew: What is your view on them?

Mr Clayton: I am not as familiar with SOPOs as I am with the proposals being made under the VOPO, so I am not in as qualified a position to comment on them on the same level of detail as I am on the VOPO. I am not as familiar with what measures might be in place in cases involving sexual offences.

Mr Frew: Are VOPOs just an alternative tool for a different type of offence?

Ms Whelehan: My understanding is that one of the reasons why the intention is to extend VOPOs to under-18s is because of the operation of SOPOs and because they apply. To be honest, we have not looked at SOPOs in any real detail. Our view on VOPOs is that they will impose additional requirements that may be conflicting in relation to restricting behaviour or imposing conditions.

We are concerned, because we do not think that these are necessary, because the Parole Commissioners will make a determination, and because there will be licence conditions, etc. Our concern is that this is maybe setting young people up for a fall, similar to unrealistic bail conditions, in that they may well want to get their lives in order and move on but may not be able to do so because of this additional raft of conditions on top of those they are already under in relation to their licence. That is one of the issues.

Mr Frew: I understand that your aim was not the sexual offences prevention orders and that you are not here to talk about them. I appreciate that. Would it be logical for this Committee to look at them and see how they have operated and worked and use that to judge a VOPO?

Mr Clayton: It is certainly something that the Committee might want to examine. Going back to the point Natalie made earlier, there is possibly a difference already, although the Committee would need to look into it. The Department indicated that an extremely small number of people would be eligible for a VOPO, and then there would be an extremely small number again, within that, who VOPOs would possibly be applied to. So, that may be a point of difference already, and it immediately makes us question whether VOPOs are actually required to deal with young people who commit violent offences.

The Chairperson (Mr Givan): The final section is on early guilty pleas. Do members have questions on those? There is then a general duty to progress criminal proceedings. No members have questions. Natalie and John, thank you both very much for coming to the Committee. It is much appreciated.

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