Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): I welcome Alyson Kilpatrick, chief commissioner of the Northern Ireland Human Rights Commission; Colin Caughey, director of policy; Hannah Russell, senior policy and research officer; and Ivanka Antova, policy and research officer. You are all very welcome. Thank you very much for taking the time to give evidence to the Committee. I will hand over to you to give what I presume will be a presentation of around 10 to 15 minutes. We will then move to questions.

Ms Alyson Kilpatrick (Northern Ireland Human Rights Commission): I have prepared a much shorter presentation. I thought that that was normally appreciated and that it would give you more time to ask questions. I hope that I did not presume incorrectly.

The Chairperson (Ms Bunting): That is very welcome, Alyson. Thank you very much. This is a very engaged Committee, so it is likely that there will be plenty of follow-up questions. I will hand over to you, and then we will proceed to questions.

Ms Kilpatrick: The commission is very grateful for the opportunity to be here to discuss its initial analysis of the Bill, address any questions and listen to any observations that you might have or direction that you want to give as to how we can be most helpful.

I said that I would be brief. It is a complex Bill, and, if I were to go through it all in detail, we would be here for a very long time. We have already given more detailed advice, and the Committee has received a written briefing, so I am taking that as read. As is our mandate, we concentrated on compliance with the European Convention on Human Rights as incorporated directly into domestic law and informed by and interpreted alongside unincorporated treaty obligations including the UN Convention on the Rights of the Child (UNCRC). I wanted to stress that, because a question that is often asked is how the treaties coexist, as well as which of them are enforceable and which are not. If you want to ask about that further, we can deal with it, but that is a succinct interpretation of how we apply the objective human rights standards.

Our advice is based on the Bill as introduced. As and when amendments are made, we will have to reconsider it. If I may, I will concentrate on a few indicative points, and Committee members can give us direction on what they are interested in or ask any questions that they wish to ask. I am very fortunate to be accompanied by three experts, so there is not much that we cannot deal with.

We welcome the Committee's approach of trying to fully and properly analyse the approach and the human rights considerations engaged by the proposed provisions. It is correct that time should be spent and that such a detailed analysis should be made of such a complex Bill that has wide repercussions. Robust, early legislative scrutiny plays a critical role in supporting human rights compliance, and the express reference to rights and the request for proper scrutiny of their practical application is welcome. That is what we see the Committee doing.

An important, more recent element of compliance is article 2 of the Windsor framework. That is relevant to all Bills, and we suggest that it should be given specific, close attention at the earliest stages and throughout the development of legislation and policy. In respect of this Bill, there are a number of EU measures underpinning ECHR rights in the fields of criminal justice and personal data protection that establish minimum standards of protection for privacy rights, victims' rights and court users' rights. Since convention rights are covered by the relevant chapter of the Belfast/Good Friday Agreement, those measures fall within the commitment to no diminution that is set out in article 2. That is as far as I will go with that. It is engaged. For any more detailed questions that you may have, I will hand over to my expert on the right, Ivanka.

Let us turn to biometric data retention. The introduction of provisions to amend the Police and Criminal Evidence Order, essentially to give effect to the European Court of Human Rights decision in Gaughran v the United Kingdom is, we think, essential. The review mechanism will have to concentrate on the proportionality of the interferences with the right to private and family life, bearing in mind that there is a legitimate aim in detecting and preventing crime. In short, a retention regime must at least pay due regard to and distinguish between offences according to a range of factors, which I will not go into, but it includes seriousness. There must be an opportunity for an individual to challenge the continued retention of their biometrics.

At this stage, it is not possible, and it may never be possible, to advise conclusively whether the model proposed is compatible. The jurisprudence to date is limited, but we suspect that it will depend on the analysis of the evidence used to determine it, and, in that respect, I am talking about retention periods. If there is, essentially, logic to it and it is properly considered to be the least intrusive means of preventing and detecting crime, which is the legitimate aim that you are trying to address, a court is likely to find it acceptable.

Also of direct relevance is the proposed review mechanism, which must be robust. The commission has suggested a number of amendments to that to ensure that the right to review is accessible and sufficiently broad. I will not go into any more detail now. The particular circumstances, however, of an individual applicant must be capable of review, so there cannot be a blanket application, but I think that you know that already.

We understand that there may be an anticipated role for the biometrics commissioner in considering appeals, and we think that that would provide greater legal certainty, but it should be included in the legislation. That would be the most certain way of doing it. We also think that it would assist if the Department set out how the proposed review mechanism will relate to pre-existing rights to review under the Data Protection Act 2018.

We suggest that the Committee should explore with the Department how the proposed biometric data retention framework will comply with the EU law enforcement directive and, as I mentioned, the Windsor framework article 2, including in respect of the rights of data subjects, duties on data controllers and supervisory authorities and remedies for breach of rights.

On children, meaning anyone who has not yet reached 18 years old, the Bill makes several proposals to enhance protections in the criminal justice system, and we welcome those. In particular, we welcome the strengthening of the presumption of bail for children, with only proportionate and necessary conditions being attached and a specific condition threshold before a child can be remanded in custody.

Children enjoy the right to liberty and security, so any restriction must be only as a measure of last resort and only for as long as is necessary, following consideration of alternative measures. The proposal to ensure that a child is held in pre-trial detention only as a measure of last resort and only when necessary is very positive, but we suggest that thought should be given to introducing a right to suitable accommodation on release on bail to enable that to happen as a matter of practice.

The Bill addresses factors relevant to decisions being made regarding a child, and that undoubtedly means that decisions are more likely to be made only when proportionate and necessary, but we recommend specific inclusion of the "best interests of the child" consideration in this legislation. While we accept that there is a general inclusion in the 2002 Justice Act, we believe that it would be helpful to replicate it in this legislation as well.

We also recommend that long-term training and guidance will be essential to the practical application of these provisions, so that should be considered and rolled out in advance.

Another very positive intention of the Bill is to ensure that children are never imprisoned with adults. We welcome that.

I will make a very quick reference to the use of live links. We recognise that the use of live links in the criminal justice system can be very beneficial in a number of cases, but we also know that an appearance before a judge can guarantee important safeguards for anyone who has been deprived of their liberty, as well as the rule of law issues that have been debated previously. That is doubly important if the person is vulnerable, has special needs and/or does not speak English. A judge being capable of carrying out a proper review and seeing the person in front of them is an important safeguard. The key safeguards proposed in the Bill are welcome. We suggest, however, that the use of live links should be monitored across the justice system so that it does not become the norm and is not used inappropriately.

Finally, on Part 4, which is "Administration of justice", the proposed reform to the Police Act relating to disclosure of records is also welcome, particularly following the 2019 Supreme Court judgement, which you have all considered. Automatic review with consideration of individual merits is critical. To ensure appropriate access to the right, we suggest that information should be provided to applicants and potential applicants on the availability of the right and the means of applying.

That is it. I have kept it short deliberately. There is a lot in there, and I hope that it is more helpful for you to be able to direct questions to us. We are all at your disposal.

The Chairperson (Ms Bunting): That is great, Alyson. Thank you very much for that. We appreciate it. Our proposed way forward is that we will raise any general issues that we have with you now and then move through the Bill's Parts so that we can focus our attention on specific things rather than jumping back and forward throughout. Are you content with that?

Ms Kilpatrick: Absolutely, yes.

The Chairperson (Ms Bunting): That is great. Thank you. First, for general questions, I will go to Deirdre.

Miss Hargey: Thanks very much for the update. I imagine that we will be engaging with you a lot more over the next period. Obviously, we are taking this issue seriously, particularly on the back of recent court judgements and given our scrutiny role. As you say, there is the overarching framework and the Windsor framework, and, as a Committee, we will look at that in more detail, given that it is new, so it will be training for us as we move through the Bill. I know that you have restructured to take into account that aspect of law. Obviously, under international law, we have human rights obligations. There have been court judgements in the area of biometrics, but do you believe, from your reading of the Bill, that the draft legislation achieves the objectives of compatibility and compliance?

Ms Kilpatrick: It is hard to say for sure because there is not enough detail at the minute. There will, I think, be further regulations or further amendments. There is undoubtedly an issue in relation to the Windsor framework, because EU directives are engaged. That is pretty clear, and it will require quite detailed analysis. It is definitely going in the right direction. It distinguishes as it should and introduces safeguards. There are applications, but I do not think that the mechanisms and the review are sufficiently clear. Colin wants to add something on that aspect of it.

Dr Colin Caughey (Northern Ireland Human Rights Commission): The principal effect of the Gaughran judgement has been to influence reforms in relation to biometrics, and the two key criteria that the European Court identified for a retention regime to be considered compatible were, first, retention periods that are clearly and objectively justifiable and, secondly, a robust review mechanism.

We have set out our thoughts on most of the proposed retention periods in our briefing. We know that it is a graduated system that takes into account the seriousness of the offence and the seriousness of the sentence imposed on an individual. There are some areas where we have raised a few questions in relation to children, in particular, but, overall, that would certainly be classified as a graduated response. Our slight reservation is that there has not been much jurisprudence at the European Court, which has been going through and identifying what is and is not an acceptable level of graduation in a retention regime.

Miss Hargey: I know that, in a minute, we will get into detail on each strand of what we have in the Bill so far, but let us look at your recommendations. When we have had officials in front of us, we have asked about their view or their engagement with you on compatibility with convention rights, and they have said that there have been no real objections or concerns. Have you communicated? You have produced this paper, but have you been having ongoing dialogue with the Department? Have you been raising concerns? Is that dialogue reflective of your recommendations, and has the Department received recommendations on things that it should be furnishing us with?

Ms Kilpatrick: Yes, almost everything.

Miss Hargey: I just want to get a sense of the ongoing engagement, even during the policy development of the Bill and now that we have Parts of the Bill in front of us. What has been the level of engagement with the Department?

Ms Kilpatrick: We offer advice whenever we see anything coming to the fore. I understand that Colin's team, in particular, have engaged quite a lot with the Department, and it has all our recommendations. It has our previous advice, does it not?

Dr Caughey: Yes, and one of the key points that we raised early in the post-development stage was on the 75-50-25. At one stage, it was proposed that the biometrics of any adult convicted be retained for 50 years. In the consultation report, that was split between those who receive a custodial sentence and those who do not, so that was welcome. We had high concerns that the original proposal was going too far, so we were pleased to see that change being brought in there. Clearly, the Department was listening to our advice. Subsequent to the consultation report, we have provided further advice and will, undoubtedly, continue to do so. We note that the Bill refers to a lot of secondary legislation that will be developed afterwards, so we anticipate being engaged on the issue for a number of years.

Ms Kilpatrick: May I add a general point to that?

The Chairperson (Ms Bunting): Yes, no problem.

Ms Kilpatrick: I am not sure that saying that there were no objections is really sufficient, because, if you want to have a human rights approach to it, the onus must be on the Department to have gone through the various stages, as the court did. There will not necessarily be a right or wrong answer to whether 75 years is appropriate, but, if the Department has have gone through the process properly, it will have asked certain questions. Is it for a legitimate purpose? Is it proportionate? Is it necessary? Is it the least intrusive means of doing it? That is all that a court will do. A court will not necessarily say that 75 years is OK or that 90 years is better, so relying on objection to steer policy is probably a mistake. There should be much more proactive consideration. [Inaudible.]

Miss Hargey: Yes, that is what we are trying to get to the bottom of: how the Department is stress-testing the Bill as it is going through, and, as you say, looking at the proportionality of balancing these things, and it is for us to try to consider that.

That is me finished on the broader stuff.

The Chairperson (Ms Bunting): Does anybody else have anything general? No? Then we will move on.

Part 1 is on biometric data and retention, Connie, I come to you first.

Ms Egan: Thank you, Alyson and team, for coming in today to talk to us about the Bill. I am conscious that my question raises something that you have mentioned about the retention of biometric data for someone who has not been charged or convicted and the

held for three years, which is my understanding. Could you talk a bit more to the implications that that would have for human rights? I understand that the Victims' Commissioner for England and Wales has highlighted the point that that provision is useful in tackling specific crimes such as violence against women and girls. Will you talk a bit more about how you think human rights provisions would interact with that?

Ms Kilpatrick: I will let Colin deal with the more detailed aspect of that, but a general point on human rights is that you could, of course, keep people safe if you took everyone's DNA, pictures and fingerprints and kept them for ever. That may be a tool for the police, but it does not mean that it is right in a society that is human rights-based. That is a philosophical answer, but it is the undercurrent of all of this. Just because you think that it may provide a higher level of security does not mean that it is right, and the police will tell you that, if you have too much material, it does not get you anywhere anyway, because they are swamped by it. They are lost. I would say that you should listen to the experts and to how the police see it. Just having data is not necessarily the answer; it is how you use it, what you retain and having mechanisms to access it etc.

Do you want to deal with the detailed bit about the three years?

Dr Caughey: For that provision, where charges have been brought, an evidential threshold has obviously been met in order to enable that to happen. Is three years the right amount, or is four years too many? It really depends on what the data is that the Department is using and how they have determined that. If a charge is brought and the conviction is not successful, what data does it have that shows that retaining it for three years gives the Department an evidential advantage when it comes to the detection of crime? In a way, I am reverting back to the Department and its working out of why three years is acceptable and two years is not acceptable.

In respect of the European Court of Human Rights judgements, in the case of S and Marper, there was consideration of circumstances where someone is not convicted. The emphasis was very much on the stigmatising ill-effect that that can have on individuals, and in particular, in that case, on children. One thing that I noticed was that article 63G of the Police and Criminal Evidence Act 1984 does not appear to make a distinction between a child and an adult. One thing that we have highlighted is that, where individuals are arrested but not charged, there is still provision for retention for up to three years. However, that requires the consent of the biometrics commissioner, and the permissible circumstances in which that may take place will be set out in regulations. We would welcome some clarity as to why it is not possible to set that out in the legislation or even for the Department to set out for the Committee why it is considered that that needs to be in secondary legislation rather than in the Bill.

Ms Kilpatrick: Part of your point is why any of your material should be kept by the police if you have not done anything or if you are not charged with anything. However, from years of research, particularly around violence against women and girls, the police know that there are perpetrators against whom incidents will continue to be reported. The material is kept for a period of time because it is likely that that will go on to an escalation of a criminal charge. That is based on other people's expert research. There is a logic and a rationale to it, and it is considered to be what is necessary and proportionate. If you always apply that test to it, you end up with something that is reasonable.

Ms Egan: That is helpful about it being necessary and proportionate. I was conscious as well that findings elsewhere had said that, if the suspect is known to the victim in relation to domestic or sexual abuse, that can be another reason and factor towards it. That is really helpful: thank you very much.

Ms Kilpatrick: A lot of it is based on expert opinion and research over many years into the pattern of offending in some types of offending, whether it is done as a child or as an adult. Other better people than us who deal with that came up the idea.

Ms Egan: No problem. Thank you very much.

The Chairperson (Ms Bunting): Maurice, I just want to check that your question relates to biometrics.

Mr Bradley: Yes.

The Chairperson (Ms Bunting): That is great: go ahead.

Mr Bradley: I have a couple of queries rather than questions. In an instance where there is insufficient evidence to demonstrate how the periods of definition correlate to reoffending patterns, as opposed to the offence itself, I would have concerns about the proportionality of long-term data retention as opposed to a serious offence, compared with a litany of offences. Are you able to expand on that, as well as the differentiation between adults and children in the retention period in the Bill and the inadequate provision for individuals to appeal decisions or request the destruction of their biometric data, particularly if they have not been convicted of any offence? Are you able to expand on that a wee bit for me?

Ms Kilpatrick: I will let Colin deal with that, and then I will come back.

Dr Caughey: You asked about instances where individuals have not committed what is classed in the Bill as a qualifying offence but have committed a recordable offence. In those circumstances, if they are convicted, there will still be retention for 50 years. If there is an offence, the clock, if you like, will start again, as far as we understand, from further offences. Those individuals' biometrics, although they may not have committed a qualifying offence, would still, as we understand it, be retained from each conviction. I hope that that answers that question.

When it comes to review and appeal, we would welcome some further clarity as to how reviews will be carried out. That is central to the safeguards. In the Gaughran case, the European Court of Human Rights very much emphasised the need for reviews that allow for the particular circumstances of an individual to be considered. The Bill provides that the Chief Constable will review the retention of an individual's biometric material. We would like to see further detail included on the factors that the Chief Constable will consider when carrying out that review and how an individual will demonstrate the case for their biometrics to be deleted. We also think that it would be helpful to explain more about the grounds on which an individual can appeal a decision from the Chief Constable and who that appeal is to. It appears that it would likely go to the biometrics commissioner, but that is not set out clearly in the Bill. Explaining the grounds for appeal would be useful.

There is a lot, in the right to review, that is left to secondary legislation. We have been provided with some information from the Department, as I am sure has the Committee, about how that will operate. Our preference is always for as much as possible being set down in primary legislation. That ensures that the legal framework is accessible and is being subjected to the appropriate scrutiny.

Ms Kilpatrick: Your questions are very valid, and there is not any obvious answer. That is why we say that the Department really should set out what its logic is for why it has chosen those periods of years. If it is challenged, that is exactly what a court will do: it will ask the Department to justify the basis upon which it reached various decisions. Some of them are arbitrary, and that is understandable because they have to distinguish, so you start somewhere, essentially. Others will be based on evidence of reoffending and patterns of offending. I think that you called it the workings out.

Dr Caughey: Yes.

Ms Kilpatrick: Ivanka would like to say something about it. She has had a look at it from the perspective of the Windsor framework.

Dr Ivanka Antova (Northern Ireland Human Rights Commission): Yes, I will provide a timely example of one of the questions that we have from the point of view of compliance with the Windsor framework. Important safeguards that the law enforcement directive provides are the right to information, the right to review and the right to erasure. To satisfy the requirements of the law enforcement directive, it is important to have periodic reviews of the retention of data to ensure that it is not retained for longer than necessary. I join my colleagues in saying that it is difficult to judge at this point the level of compliance, because there is not sufficient detail on how the Bill might be satisfying the specific provisions on the right to erasure, the right to information and the right to review. That is just to give you an example of the types of Windsor framework considerations that you might want to follow up on with the Department.

Mr Bradley: Thanks very much.

The Chairperson (Ms Bunting): On the back of Maurice's question, can I check something that you said, Alyson? Should that working out, essentially, and the rationale behind what are arbitrary numbers have been included in the explanatory and financial memorandum?

Ms Kilpatrick: It would be helpful.

Dr Caughey: From our perspective, as much information as possible being set out to explain that justification is useful in informing your analysis and our analysis. It would mean that these debates and discussions are much more informative and that we have the underlying rationale. Ultimately, we are not criminologists to understand offending patterns and things of that nature. We do not necessarily have a concern that that work has not been carried out; it is just helpful to see the workings out and how the Department has come to the conclusion on those things.

The Chairperson (Ms Bunting): That would be helpful for us too, and we have indicated that. Justin, are you coming in on biometrics?

Mr McNulty: Yes, Chair.

The Chairperson (Ms Bunting): Go ahead, then.

Mr McNulty: Thanks, Chair. Hi, Alyson, Colin, Hannah and Ivanka. Thanks for your evidence thus far. Is the Bill's definition of biometrics as fingerprints and DNA specific enough, or is it too broad and all-encompassing and too vague? Further to that, you have asked us to make sure, through the work of the Committee, that we avoid unnecessary stigmatisation of children as a consequence of the retention of biometrics. Can you be more specific about what you mean and what you want us to do in that regard?

Ms Kilpatrick: Hannah will deal with the point on children. On what biometric data is, you can have a very broad reference to biometric data and let case law and criminal law decide what is included in biometric data. It is certainly more than DNA and fingerprints, so it will include, for example, photographs. The law is very clear on that. The definition of biometric data could be left to what we understand it to be. That is a slightly convoluted way of looking at it, but it is going to change over time. Technology will change, and biometric data will be made up of different things as time goes on. There is some strength to having simply 'biometric data', as long as everybody is sure about what biometric data is. I understand that there has been a question about photographs. We are very clear that they are biometric data. There is case law on that, and the EU directives make that very clear.

Dr Hannah Russell (Northern Ireland Human Rights Commission): The point about stigmatisation of children really links to how there needs to be specific consideration of children, because obviously they are particularly susceptible to anything that comes out of this. There is a lot of research out there to show that, once a child is in the criminal justice system, it almost sets them on a path, as such. It is about ensuring that the path to criminalisation is kept to a minimum, which flows back to the principles of proportionality and necessity. That also applies to the adult scenario, but particular consideration of children and the knock-on effect that it might have on their adult life is required. I will bring it back to the broader piece on adopting a child-centred approach to the whole process. Again, that flows back to the words "proportionality" and "necessity". Those will keep coming up throughout our evidence. Ultimately, it is about acknowledging the fact that there are specific sensitivities that relate to children and protecting them as much as possible in that system.

Ms Kilpatrick: Children are particularly vulnerable, and they are particularly vulnerable to stigmatisation. Simply having had your material taken by the police, even if you are never charged with anything, can in itself be stigmatising. This sort of question is sometimes asked: "Are you known to the police, or have the police ever taken fingerprints?". It may turn out that there is nothing and that you are not accused of anything, but, if the material is kept, that goes with you for the rest of your life unless it is deleted. Colin, do you want to add anything?

Dr Caughey: Yes. There are quite a lot of exceptions made for children who are convicted or who receive non-custodial sentences. The review mechanism, however, is only available for longer-term retention periods. For those shorter periods, which could be over the formative period of a child's life, there is no mechanism in the Bill, as we see it, for them to challenge that retention. For those children who feel stigmatised because they know that their biometric data and DNA are retained, we think that it is important to look at whether provision could be made for a child to apply for a review of their biometrics in those circumstances. Our briefing highlights rights contained in the Data Protection Act 2018, under which challenges can be brought. Through the Committee's engagement with the Department, it would be useful to understand, for children whose biometrics are retained for shorter periods, whether the Bill has any flexibility to allow a right to apply to the Chief Constable for a review if they are in the cadre of children that it is particularly impacting on, moving away from an offence that they might have committed.

Mr McNulty: Can we ask you for clear recommendations on how to avoid the stigmatisation of children as the Bill passes?

Dr Caughey: We are happy to develop those and pass them on to you.

The Chairperson (Ms Bunting): May I ask a question on the back of Justin's? How do you strike a balance between being — I use this in scriptural terms — "free from sin" and "free to sin"? How do we ensure that someone who potentially engaged in criminal activity but might not yet have been convicted, and then, once they turn 18, their DNA data is destroyed — are they going to regard that as, potentially, a free pass? At that stage, the police would not have anything to go on. It is like a clean slate. For people who are turning their lives around, it is great that it is a clean slate, but for people who are not doing so, because of the trends and patterns, it gives them a clean slate to start again and to be protected.

Ms Kilpatrick: You are talking about someone who has been convicted, though. There has to be a reason as to why they should not have a clean slate if they have not been convicted of anything.

The Chairperson (Ms Bunting): This is where I am trying to strike the balance. We had this conversation with the Victims Commissioner designate. We have all seen circumstances where, to coin a phrase, which is one that I used with her too, "The dogs in the street know who did it", but being able to get someone to that threshold is a very different ball game. I just want to check that, going forward, if a slate is wiped clean when you turn 18, does that mean that law enforcement has to start again from nothing?

Ms Kilpatrick: I am not sure that that is how it will actually work. I will let Colin deal with the detail of that. As a matter of principle, which is what you have to go back to, the dogs on the street are not cross-examined and are not part of the criminal justice process, so it is too easy, I think, to say that everyone knows who did it. What you have to come back to, ultimately, is whether it can be proved that a person has committed a criminal act.

The Chairperson (Ms Bunting): I am just trying to [Inaudible.]

Ms Kilpatrick: I understand, and you have hit the nail on the head in the sense that that is right at the centre of this. It is to be protective of people so that victims are not created, but it is also to not make a victim out of someone about whom there are just rumours or allegations. Even if they have committed a criminal act, if they have not been proven to have done it, I think that, on balance, the criminal justice system has to give them the benefit of the doubt. That must also apply to retaining their material, because the purpose of retaining that was because they were suspected of a crime. If it turns out that they did not commit any crime, the justification for taking their material evaporates. You can think of situations where somebody might be falsely arrested just to take material when there is no reasonable suspicion that they have committed any criminal act. All these safeguards and where the balance should lie have been worked out over centuries. I take your point: the police will always want to keep stuff and will always want to be able to say, "If only we had this database of every single person in Northern Ireland, we could probably find the DNA that was at that crime scene".

The Chairperson (Ms Bunting): As you say, it is the fundamental balance between society's rights and the individual's rights. We get that. We are just trying to work our way through this too.

Ms Kilpatrick: Yes. The only thing that I can say that might be at all helpful is that the criminal justice system has worked this out over many years, and, for the most part, it is doing its job properly. I know that there are cases that have not been handled properly, but, if it is being done properly, the balance has, I think, been struck already, so I do not think that we need to concern ourselves so much with it.

Dr Caughey: For circumstances where a child or an adult is arrested or charged and there is no conviction, the Bill appears to strike a balance, in that a three-year retention period applies. We would, though, as we said, like to see some further elaboration where charges are not brought.

The Chairperson (Ms Bunting): I am not sure about the three years. I need to understand why.

Ms Kilpatrick: As do we, essentially.

Dr Antova: I will chime in from a Windsor framework and EU law perspective. Perhaps this will be helpful when thinking about the balance. We recognise the difficulty in balancing the safety of society and community with the rights of the individual. From a law enforcement directive point of view, because biometric data is so sensitive and carries such a high risk to the data privacy rights of an individual, the directive and the European Court of Justice have adopted a way of thinking about collecting and retaining data only when strictly necessary and only for as long as necessary. That is the so-called purpose limitation. If you look at article 10 of the law enforcement directive, for example, you will see that the safeguard is, especially in cases where the person has not been convicted, that the balance has to take into consideration the broader set of rights that a data subject would have, whether they are a child or an adult. So, from an EU law perspective, the general thrust is to try to collect as little data as possible, only when necessary, and to try to retain it for a strictly necessary period.

The Chairperson (Ms Bunting): That takes us back to "necessary" and "proportionate".

Ms Kilpatrick: Hannah wanted to add something.

Dr Russell: I just want to work us back slightly to Justin's question and flag a couple of things. A child is a child until the age of 18, and it is about recognising that there are many reasons why a child — adults too, but children in particular — may find themselves in a situation where their biometric data is retained. A lot of that generally comes from external factors. In those scenarios, we may need to look more at supporting than criminalising. I will also flag that there is a broad range of years within which a child could fall into the criminal sphere. I know that the age of criminal responsibility is outside the scope of the Bill, but it is relevant, because a child's data could be retained from the age of 10. That needs to be given particular consideration. It can be traumatising; all the more so the younger the child is. That is more of a direct response to Justin's original question.

The Chairperson (Ms Bunting): Thank you. Justin, have you anything further?

Mr McNulty: No. Thank you very much for your answers. We look forward to seeing what you propose on protecting children in how biometrics are treated going forward.

Miss Hargey: We are also grappling with the retention issue, and we need more information from the Department on its rationale. Are you aware in your work, even through the Windsor framework, of how the court is looking to approach this, with emerging technology and stuff as well around these issues? Are there any international precedents for time periods for this? Are there any areas of good practice that could be shared?

Ms Kilpatrick: There is nothing much that is more helpful, unfortunately.

Dr Caughey: We recently had a meeting with the Council of Europe, which is continuing its supervision of the Gaughran judgement. With the council, we are exploring trends in retention periods throughout Europe, and it highlighted the fact that there is no standardised approach. We note that, in the consultation document relating to DNA retention, the Department says that it has carried out an assessment of practices throughout Europe and indicates that what is proposed is largely in line with that. The Department has done that work, so it would be useful if it was able to share that.

Ms Kilpatrick: The Council of Europe's Committee of Ministers will want to see that, because it is monitoring implementation of the judgement. If that is available, it would be helpful for you to see it as well.

Miss Hargey: Yes, 100%.

Dr Russell: There is one thing to add on that. What came out of that meeting was that the longer the retention period, the greater the safeguards should be. It is likely that that will be in the Council of Europe advice.

Dr Antova: I will chime in again, if I may, from the Windsor framework point of view. EU law is not particularly prescriptive about the length of retention periods, provided that data is retained only when strictly necessary and only for as long as is necessary. In thinking about the appropriateness of the periods, the court considers the extent to which they are underpinned and strengthened by procedural measures. That is why we are asking for more detail on what those measures might be to ensure that the data is regularly reviewed so that it is not stored for longer than needed.

Miss Hargey: That is where the gap is.

Ms Kilpatrick: This is actually a good example of human rights being a lot more forgiving than people think. They set the general standards and leave it up to individual nations to decide how they will protect those standards. There is acceptance that countries have a degree of latitude in how they do that and that there is not necessarily an answer that is clearly right or wrong. The human rights approach of adopting a balancing exercise will, I think, always be successful because that is exactly what human rights require and what a human rights court will require when it is analysing. It allows decision-makers like you — legislators — a degree of freedom, as long as you can justify the decision in your own mind.

Miss Hargey: Thank you.

The Chairperson (Ms Bunting): We will move on to the next section, which is children.

Ms Egan: At paragraph 4.38 of your briefing, you recommend that the DOJ include express mention of the "best interests of the child" principle in the clauses of the Bill about bail and remand as they relate to children. What is your rationale for that, and how would that interact with the provision added in 2015 to the Justice Act (Northern Ireland) 2002 that functions in relation to the youth justice system must be exercised with the best interests of the child as a statutory function?

How do you think those would interact if that principle were put into the Bill as well?

Ms Kilpatrick: That is an overarching principle. All parts of the criminal justice system have to consider the best interests of the child. The relevant factors are being set out in this clause, and the best interests of the child are, clearly, a relevant factor. The legislation makes it crystal clear that, when dealing with bail, for example, the best interests of the child is a relevant consideration. Having a general overarching duty to consider it is very different from having a specific duty to consider it as a relevant factor when making a particular decision. I am not saying that it would not be effective without it, but that provision makes it much clearer. When you are expressing particular factors, it makes a lot of sense to have the other factor, which is already required as a matter of general principle in the criminal justice system, as one of the factors in that decision.

Ms Egan: I do not want to put words in your mouth, but do you think that that would be duplication? Do you not think that it would be duplication to include it?

Ms Kilpatrick: No.

Ms Egan: Do you think that the statutory provision, as it appears in the Justice Act, works well as an overarching duty?

Ms Kilpatrick: I am not sure that it is working terribly well. If you wanted a bit more precision on that, we would have to come back to you.

Ms Egan: That is absolutely understandable.

Ms Kilpatrick: It certainly is not duplication to repeat it in individual pieces of legislation where it is relevant. The fact that you have that overarching duty does not mean that it cannot appear in individual pieces of legislation that call for the consideration of particular factors. One of those factors must be the best interests of the child under the 2002 Act, and there is absolutely no harm repeating that in this piece of legislation. Somebody who is making a bail decision may not be aware of the Justice Act 2002, but they will be aware of the statutory factors when making a decision that relates to a child.

Ms Egan: Thank you. That is helpful.

Dr Russell: Alyson covered that very well. This is in addition to the Bill, but consideration will have to be given to how the Bill will be implemented in practice. Training will be key to that. It would be helpful to have it set out very specifically that there is one provision, for example, that you can go to that clearly sets out what your tick box should be. That would help to ensure that the Bill is implemented in practice.

Ms Egan: Thank you.

Miss Hargey: You answered the point about live links. We have similar concerns about the application of live links. What is your view on their compatibility with children? We agree with the broad thrust of the Bill in how it has a child-centred approach. I have asked previously which Bill the age of criminal responsibility could be put into in this mandate, and that is this Bill. Sections of the Bill are written in such a way that means that they could have the effect of increasing that age, so that may come at some point — we will see. Do you believe that it is compatible with the UN Convention on the Rights of the Child? Do other areas of work in the current provisions need to be brought forward in order to strengthen that one? We have asked about live links and their application elsewhere, particularly for children. Can you provide any additional information and advice on the oversight arrangements to ensure that live links are not used more than they should be and that a child-centred approach is taken, particularly when dealing with young people?

Ms Kilpatrick: It is not incompatible to have live links available. In fact, if you think about it, you will find that it can be a requirement in some cases, such as that of a vulnerable witness, somebody who cannot travel or in the difficulties that are associated with producing somebody out of prison if they are unwell. There are all sorts of reasons why live links are very much human rights compatible and strengthen human rights. They should not, however, be used just for efficiency in order to save resources or as a cheap alternative. The presumption should always be that a person will appear in court. That is for that person's protection, as well as for the system. Like anything else, it should be used if there is a reason to do so. A very good reason for having live links available is in cases of violence against women and girls, and to give an example, a woman victim can give evidence from the family justice centre up in the north-west. That is for a very good purpose. I have a slight fear, however, because those things often end up becoming routine, and then the whole purpose for which they were set up in the first place is lost. Somebody needs to keep an eye on that. Its use should be limited. It is for a very specific purpose. It is about keeping an eye on when it is being used and what for. It is not incompatible.

Miss Hargey: It is about the application.

Dr Russell: One of your questions was about compatibility more generally. I will focus on the bail and remand provisions that are linked specifically to children. We, largely, welcome everything on that, including the addition of best interests. However, certain safeguards might be missing, which means that practical implementation may not be enabled. For example, as Alyson touched on in her opening statement, there are challenges in ensuring that suitable accommodation is available for children who would not typically be subject to remand or bail conditions. That decision could lead to there being no other option but to backtrack on that, because, effectively, there would be nowhere for them to go where they would fit. It is, arguably, a resource issue, but provision could be put in the Bill to place an obligation on providing those resources.

The Chairperson (Ms Bunting): There seems to be a bail fostering pilot? Are you aware of that?

Ms Kilpatrick: I do not know about it in any detail, but I am aware that there is one. I was not sure whether it was operational.

The Chairperson (Ms Bunting): It has been used very little, and it has been extended for another six months.

Ms Kilpatrick: Was it in Ballymena at one stage?

The Chairperson (Ms Bunting): I am not sure where it was, but the issue is that it has been used, I think, only twice in six months, and, because of that, the trust allowed the household to be used by other people who needed fostering. Where it worked, it seems to have worked out quite well, and other children were present. That seems to have been a good influence. It has been extended for another six months in order to enable a fuller evaluation. Accommodation was supposed to be built, but that is now off the table, so we need to find another way, because there is no doubt that custody is not the best way.

Ms Kilpatrick: We will certainly have a closer look at that pilot and keep an eye on it. That is very interesting.

The Chairperson (Ms Bunting): I am a bit concerned about the conditions of bail for children. One of the conditions that is listed is the child's release causing:

I wonder about rights. Presumably, if the child has a legal right to bail, the child has a right to bail. I am slightly worried that that provision could lead to a mob mentality that says that somebody who is entitled to bail might not be afforded bail. Do you have any concerns about that?

Ms Kilpatrick: It is very difficult to say that somebody is entitled to bail. There is a presumption of bail in all cases, and it is up to the judge, who has access to all the relevant information, to decide whether bail is appropriate in any individual case. It starts from the presumption that the person should have bail, because everyone should have bail, unless there is a reason that they should not.

My concern about it comes from the ideology that is behind some of the new public order laws, which suggest that it has to be reasonable. If public order is considered to be stuff that is unreasonable or unpleasant, and if that is a reason to refuse bail, that is a really serious issue. In those circumstances, you could deny bail for a child who wanted to participate in a protest or a child who wanted to attend a procession that goes through somewhere. The problem is that it is hard to measure, because there is no entitlement to bail. Everyone should get bail, unless there is reason not to have it. That may be a valid reason, if a judge is presented with enough information.

The Chairperson (Ms Bunting): I am trying to understand the practical implications. If the presumption is that a child will get bail, which they should, what is the public order issue on the other side? I am worried about what that means. What if a community were to come together and say, "Well, we don't want that child back here"? That does not mean that the child should not get bail; it means that an alternative should be sought. Do you have any views on that?

Ms Kilpatrick: It would be an improper interpretation and reading of that to say that the child's presence in the community might lead to a breach of the peace by others.

It is where it has been decided that the child is at real risk of causing serious public disorder. The most recent example is the protests that turned violent in Belfast and across London, in particular. Most people were denied bail because of the assumption or assessment that, if they were allowed out on bail immediately, they would re-enter those violent protests.

It is a protective measure. The more serious the disorder for which they have been arrested and charged, the less likely they are to be released immediately on bail. There are all sorts of factors, including the ongoing nature of the disorder. It is not just as simple as that.

The Chairperson (Ms Bunting): I want to explore that further, because we have seen circumstances where children have been used by adults. Again, that is not a reason for them not to be bailed. One of the conditions might be, "Put them in a different part of town" or "Put them in —".

Ms Kilpatrick: To address your concerns, I can think of all sorts of ways in which a child could be harmed in situations like that. That is why the best-interests principle is so important and why it is written so expressly in the list of things that have to be taken into account. The best-interests principle would step in in a situation like that and, hopefully, prevent harm to a child.

The Chairperson (Ms Bunting): That is helpful. Thank you very much. Does anybody else want to ask anything on children? If not, we will carry on.

Part 3 is on the use of live links. Does anybody have anything further on live links?

Ms Ferguson: May I come in? This is a bit like the previous conversation. We should have a default position on and presumption about the use of live links, rather than just assuming that they will be used. The default position should be that their use needs to be justified. We have had many a discussion here about speeding up justice for efficiency, accessibility and saving people money by not having to travel from one place to another. That has fed the momentum for live links, which are good for certain situations. Do you recommend utilising live links as the default position for custody hearings and interviews?

Ms Kilpatrick: There has to be a real reason for using live links as opposed to bringing somebody before a court, because that is how the criminal justice system works, and it is for a very good reason. Partly, it is to make sure that the person who is in custody is seen in a public setting out of custody. It is important for the criminal justice system itself that a person is brought before a judge, given the whole nature of the hierarchy of the court system. Part of that depends on a person's being presented to a judge in a courtroom. You can see how it becomes an administrative thing. Live links can be and are used a lot for bail applications, rather than producing somebody from custody. The person will be on a live stream, and their representative will make their bail application on their behalf. That can work. I think that the presumption now is that they will always do it by way of a live link, and I am not sure that that is correct. You always have to have a reason for it. You should appear before a court for the person’s safety and for the public to be able to go along and see the person. All those considerations have developed over decades, even centuries. Ivanka will speak about the EU directives that expressly deal with the issue.

Dr Antova: To follow on from Alyson’s point, the use of new technology, including live links, has, I am sure, very positive practical implications. However, the EU victims directive and the EU interpretation directive lay down basic safeguards for the rights of victims and the rights of persons suspected of a crime who do not speak the language of the criminal proceedings. For us, it is important to think about those basic standards and protections that are afforded to such people when thinking about the use of technology. In the past, we have recommended that specific research be carried out to identify whether live links technology is compatible with the rights of such particularly vulnerable people. Going forward, it is important to consider compliance with the non-diminution commitment in the Bill respecting those standards.

Ms Ferguson: Just to follow up on that, I want to ask about the right to refuse. We have just had a presentation from the Commissioner Designate for Victims of Crime on the victim survey results. From reading some of the qualitative comments, it is a key issue that, in the utilisation of live links, it is just an assumption, and the judge makes a decision and whatever; they never had a choice. Should you have a right to refuse and want a face-to-face appearance before the court, rather than utilise live links? Do you need consent? Should there be consent?

Ms Kilpatrick: You do not have a right to refuse, but a judge can decide not to use enforcement powers to bring you forcefully before the court. So it is not that you can decide yourself, that morning, if you are in custody, whether you do or do not want to appear in court today. The judge can decide. However, most judges will not order a person to be produced, if it is going to be more detrimental to the business of the court that day, and all sorts of other factors. If somebody has to be physically forced and produced, a judge may decide that that is not in the best interests of anybody. You do not have a right to refuse, as such. It is just that, in practice, you may end up not being made to go. There is a difference in practice. It may not be obvious to many people, but there is a very important difference.

Ms Ferguson: Is it just a difference in practice, for practicalities, efficiency and stuff? It is better that whatever is done should be done through live links rather than coming to the court. Can the court make that decision —

Ms Kilpatrick: There are all sorts of reasons why a person —.

Ms Ferguson: — versus someone who is in custody and who says, "No I want to attend, face-to-face, in the court"?

Ms Kilpatrick: I see what you mean. You mean somebody in custody who wishes to be there in person, but they are not being afforded that opportunity.

Ms Ferguson: Yes.

Ms Kilpatrick: You would need to ask someone who practises criminal law at the minute. My view is that a person could insist on being produced in a court, but you do not have a right not to go. You could insist on being produced before a court. If you think of it, one of the reasons why people are produced before a judge is so that a judge can see, quite literally, whether they are still in one piece or still in the jurisdiction. Is this the person who should have been detained? These are processes that have developed for the safety of the detainee but also for the victims.

Your point is about the victim saying, "I wanted him or her to be standing there, and I wanted to see them. I wanted to see who they were, look at them and make them listen to me." That is also part of the criminal justice system. There is a good reason why people would want to see the offender in the dock, in a court room, and they are entitled to do that, unless there is a good reason not to.

The Chairperson (Ms Bunting): And vice versa. You are entitled to face your accuser.

Ms Ferguson: Just finally, I am not aware of this, but in the utilisation of live links, is it recorded? If it is, do you have the right of erasure, as we mentioned?

Ms Kilpatrick: I wondered about this as well. It depends on the purpose for which the live link is used. You can record evidence. You know that there is a new building for vulnerable witnesses?

Ms Ferguson: We have been there, yes.

Ms Kilpatrick: Evidence that is given through that may be recorded and then played into the court. There are certain circumstances in which that can happen, but usually it should simply be live-streamed directly into the court and should not be recorded. There can be a transcript of it, so the actual recording — the image of the person giving the evidence — would not be kept, but there would be a transcript. In the same way, if they turned up in the witness box, there would be a transcript of what they said for those proceedings. However, if it is a very vulnerable witness whose identity is protected, there are different rules. It is decided case-by-case, every time, unfortunately.

Dr Caughey: Just on the specific amendment at clause 21, the appropriate consent of the person held in custody is required for live links to be used, so it differs on a case-by-case basis as to consent. We had, in our briefing, guidance from the Lady Chief Justice on the application of the "interests of justice" test. A lot hinges on how that test is applied. It would be great to see some data coming out, now that we have had live links for such a long period, to see how they are operating in practice and whether individuals are giving that consent. Do they understand the distinction between a live link and appearing in court, and what the benefits are of a physical presence in court?

Ms Kilpatrick: Chair, as you said, sometimes the defendant also wishes to be in the same room as the person accusing them because not every accuser is telling the truth. So there is an equality of arms in both directions. That is interesting; I had forgotten that specific provision. You cannot refuse to be produced, but you can refuse not to be produced. I think that that is what I said. Yes.

The Chairperson (Ms Bunting): I am conscious of time, members. Is there anything further on live links? No. What about administration of justice? Anything on final provisions? No. On that basis, thank you. Is there anything else that you folks want to add before you leave?

Ms Kilpatrick: May I just check something? If I have got something wrong, my colleagues can correct it. No. You can say. [Laughter.]

They will tell me outside.

We have looked at some of the more detailed stuff, and we are very happy to share any of that with you. We do not want to bombard you with a load of our material, but we are happy to share anything at all. If you let us know what you would like and if you want us to consider something in future, we are very happy to do that.

The Chairperson (Ms Bunting): I expect that that is likely. Deirdre, do you want to come in again?

Miss Hargey: Thanks very much. We will get you back or get more information on the addendums that we are due to have at the end of December. We will do our call for evidence after Christmas, particularly on the EU directive side, because I do not think that we have really familiarised ourselves, even in the context of looking at convention rights. It is an added dimension. I know that you are probably on the committee, so you might have a bit more.

Ms Kilpatrick: The law enforcement directive and the victims directive are the two main ones that you will probably want to look at.

Miss Hargey: I do not know whether the commission does general training, even for parties and so on, in this area. That would be useful.

Ms Kilpatrick: If we get our budget topped up, we might be able to offer some more training. We work with lots of Departments, and we are very keen to do that. If anybody is interested, we will, in all honesty, make arrangements to help, because we are very keen to be constructive and proactive.

Miss Hargey: Good. Thank you.

The Chairperson (Ms Bunting): Thank you very much for your evidence, everybody. It has been really helpful, and we will doubtless engage with you again. We very much appreciate your help. Thank you.