Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): I welcome Andrew Laverty, who is the Bill manager. Andrew, welcome back. I welcome Lisa Boal, who is from the reducing offending division. Lisa, you have been with us too, many times. In fact, all the witnesses are people whom we have seen before, and you are all very welcome. I welcome Veronica Holland, deputy director of the rehabilitation and reducing reoffending division; Katie Taylor, deputy director of the protection and organised crime division; and Brian Thomson from AccessNI. Folks, as I said, you are all very welcome. We are grateful to have you here and look forward to hearing what you have to say. Our intention today is that we will move through this in sections. It will focus our discussion and mean that we are not jumping back and forth between subject matters. My intention is to take the subject areas as they come. Biometrics will be first, then restorative justice, then AccessNI filtering and, finally, serious organised crime. If it is OK with you, I envisage that whoever is kicking us off with biometrics will give their introductory remarks on biometrics, and we will then open the floor to questions on that. We will round all that up and then move on to the next subject. Is that OK?

Mr Andrew Laverty (Department of Justice): Yes.

The Chairperson (Ms Bunting): We have a few questions on each subject. That way, it is a bit cleaner and will keep us all focused. We can deal with issues as they arise.

Mr Laverty: Personally, I do not have any policy content on this set of amendments, but I am happy to appear before the Committee, and we thank you for the opportunity to talk about this set of amendments. I am happy to address any issues that there might be around the management, handling or process of the Bill, including what is coming up next. You suggested that you will start with biometrics, which is Lisa's area. Rather than rehearse the briefing papers with which members have had the opportunity to familiarise themselves, I am happy to give you a high-level snapshot, or you may be happy to plough ahead.

The Chairperson (Ms Bunting): Go ahead, Andrew, and give us your snapshot.

Mr Laverty: I do not want to take away from anything that Lisa might wish to say. From a Bill-management perspective, the biometric material provisions do not represent any significant new policy. They are primarily additions to the provisions that were drafted for inclusion in the Bill at introduction to ensure that they operate as intended, and that was after the finalised provisions were stress-tested in conversation with PSNI operational colleagues. As I said, it is not significant new policy that represents wholesale change. Rather, it is a precautionary approach to make sure that the legislation is as future-proofed as it possibly can be. I am sure that Lisa is happy to speak to the detail of it for you.

Ms Lisa Boal (Department of Justice): Thank you. As Andrew said, these are minor amendments that arose as we were working through the detail of the provisions with the PSNI, and a couple of things came to our attention that we needed to amend. The briefing paper that you have been given explains the amendments in detail. In summary, there was an issue that needed to be clarified around the use of the term "reported" in the part of the Bill that deals with biometrics. It was an issue that needed to be clarified because the term "reported" can mean different things when used colloquially in everyday life from when it is used for a person going through different stages of the justice process. The amendment is to clarify what that term means in relation to when the police are able to use the powers to take fingerprints, DNA and other biometric material. It is to clarify that it is at the stage when the complaint is laid with the court, and that aligns with the Magistrates' Courts (NI) Order 1981. It is to clarify that terminology through that part of the Bill.

It came to our attention that a community-based restorative justice order (CBRJ) can be a stand-alone disposal in its own right, so we needed to make sure that the retention period for anybody who is given one of those disposals was clarified as being for over-18s and adults. That clarification has been made.

There were a few changes to clarify time periods under clauses 63E and 63G. That is to, when an investigation has been completed, give the police a bit more time before they have to delete the material to consider whether they need to make an application to the biometrics commissioner or make arrangements for appropriate deletion. It was to make sure that there was enough time and clarity on that timescale and, at clause 63G, to make clear that the police can hold the material until they have the outcome of the biometrics commissioner's decision. That was done to give clarity to the PSNI on the operation of the legislation.

There was also an addition to the recall powers that are to be commenced as part of the overall package. They give the police the power to recall somebody to a custody suite to have their fingerprints and DNA taken, if that was not done during the investigation. If a voluntary interview was carried out, rather than an arrest event, the police will not have taken fingerprints and DNA at that interview. The legislation will give the police the power to recall the person in order to do that.

We have introduced an amendment to put photographs on the same footing as fingerprints and DNA, which is in line with an amendment that has already been made in England and Wales. We have further clarified that power. The police will have the power to specify the time and date at which the person has to come back, rather than giving a general time window. That process will work more efficiently for everybody: the police will know that somebody is coming in, and the person will know when they have to go. The change will make that provision work better.

That is a summary of the changes that are being made to the biometrics provisions. I am happy to take questions on any of that.

The Chairperson (Ms Bunting): OK, Lisa. First, Deirdre has questions about retention periods, human rights and stress tests, and Connie will come in on the back of that. I want to clarify something about photographs: do you guys now regard photographs as part of biometric material? The Bill does not specifically mention that.

Ms Boal: The Bill focuses on the retention of fingerprints and DNA. We still have not reached a view on whether photographs are biometrics. In some cases, they are defined as biometrics; in others, it is not quite clear. It is an evolving issue, and we need to do a bit of further work on the retention of photographs. At the moment, we are amending the power to recall the person to take the photograph.

The Chairperson (Ms Bunting): As you progress the matter, do you envisage making a decision on whether photographs are considered to be biometric material before the end of the Bill's passage?

Ms Boal: I do not know that we will come to a decision by that stage, because we need to look at the issue in more detail. It will depend on our capacity to do that. Our counterparts in Scotland and at the Home Office are also looking at the issue in more detail. We want to take account of that work and how photographs are considered. The Scottish legislation's quite broad definition of biometrics includes photographs. The Home Office position is not just as clear. To date, it has not included photographs, but it is looking at the issue again. We want to take account of different views and come to our view on it. We need to come to that decision in due course, when we have the capacity and time to do so. Our initial focus has been on fingerprints and DNA retention to address the judgement in the case of Gaughran v UK.

The Chairperson (Ms Bunting): That is fair enough. Thanks very much.

Miss Hargey: I will follow on from that last point. The issues are serious and have human rights implications. A series of court judgements has set out the issues around compatibility. If no decision is taken by the Department on whether photos are part of the retention, is having the power to take those photos not a case of putting the cart before the horse? Are you talking about not implementing that legislative change until you make a decision on whether photos will be viewed as biometrics?

Ms Boal: There is the power to take photographs. There is already provision on the use for which police can take those. The police have the power to take photos of somebody who is under arrest. This is the power to recall someone to take a photo if that was not done during interview at the investigation stage. There are already powers for the police to take photographs and general powers related to the use of photographs. That does not really affect the decision on whether photos are biometrics. That becomes more of an issue when you talk about searching, facial recognition and that sort of thing. We will need to come to that in due course, because a bit more work needs to be put into it. In relation to human rights compliance, the police have already said that their policy will be to delete photographs at the same time as deleting fingerprints and DNA.

Miss Hargey: I see in some of the documents that the PSNI has sought legal advice on different aspects of biometrics in general. Are you aware of whether that included any advice on human rights?

Ms Boal: I am not aware. I am aware that the PSNI sought legal advice on various issues. I cannot speak to what its legal advice does or does not cover.

Miss Hargey: On the back of the High Court judgements on biometrics, have you not probed the police on that?

Mr Laverty: Chair, Deputy Chair and Committee members, it might help to reassure you if I tell you that, in the same way as the provisions were scrutinised for competence advice and compliance with human rights, a body of work will be commissioned from colleagues in the Departmental Solicitor's Office (DSO) on the same detailed competence advice, including human rights compliance and Windsor framework considerations. We will do that work in parallel with the Committee's call for evidence. Should you find it helpful, we can offer you a table of the rights that have been considered specifically for the amendments, similar to the one that we did for the provisions of the Bill at introduction.

Miss Hargey: That would be really useful. My other question was going to be on whether the proposed changes and amendments comply with the judgement in the 2008 Gaughran case. Have you shared the text of the amendments with the Human Rights Commission? Can we get a timeline or a written response from you on when you are likely to do that scoping exercise via DSO? A bit more detail on that would be useful as well.

Mr Laverty: It has launched. The work was initiated this week. I am fearful of giving you an indicative time frame at this stage, in case, somehow, it becomes a hard target that we get criticised for missing in the future. We are looking for that exercise to be complete towards the end of February. It will then go to the Minister's office for her consideration before it comes to the Committee. Ordinarily, the work would be required at the point of seeking Executive approval to table the amendments, but, given that the amendments are at such an advanced stage of preparedness and that you are due to put them out for publication as part of your call for evidence, we asked DSO colleagues to expedite the competence and compliance advice process so that you have as much information as possible available to you at the same time as the information comes back to you from stakeholders and external interested parties.

The Chairperson (Ms Bunting): That is very useful, thank you. Andrew, on indicative timings, if we know that timings are indicative, we will never come after you for being late.

Mr Laverty: I am conscious that I have dropped the ball on a couple of things in the past. The delegated powers memorandum was the big one. I do not want to set myself up to be embarrassed again.

The Chairperson (Ms Bunting): That is fair enough, but, if we know that it is indicative, we know where we are.

Mr Laverty: OK.

Miss Hargey: My other question was on the rationale for specifying a date for people to attend to give fingerprints. Normally, there is engagement with their legal representative to arrange a time. Putting in legislation a specific date that is based on what works for the PSNI would be extremely unworkable.

Ms Boal: I will explain. At the moment, the recall power gives the police the power to ask somebody to come back to have their fingerprints and DNA taken within a certain time frame, such as a week. That is quite a broad span of time. The time and date will not be put in the legislation; rather, the police can specify the time and date for the person to come back to have their fingerprints and DNA taken. Of course, they can bring their legal representative with them. Rather than the police saying to somebody, "You have to come to us within seven days", whereby somebody could turn up when the police station was busy and officers did not have the time to do it, leaving the person waiting around for ages, it would work more effectively if the police could say, "Come back to me on Wednesday 6 October at 3.00 pm". The person then knows that they will be dealt with at that time. The process would work more efficiently. That is how it is intended to work.

Miss Hargey: What if that date does not suit the person? It might suit the police but not the person. A lot of the changes are coming from a policing perspective. Is that balanced against the rights of the person who is being engaged with? Is it proportionate and compliant? Have you stress-tested it from that perspective and not just from a policing perspective?

Ms Boal: We have focused on it from the police perspective because it is about the police's use of resources and exercising their power to recall somebody to have their fingerprints and DNA taken. The police have that power.

We can have that discussion with the police. They may want to think about operationalising the power to talk to the person before specifying a time: perhaps they could call the person first to check that the time will work. We could certainly look at that so that we know how the power will be operationalised. We can pick that up.

Miss Hargey: That is my concern. If someone is working, for example, the time might suit the police but not the individual, if they cannot get out at the specified time. Will the individual be in breach if they do not make that time? I understand that we need to manage policing resources, but we have to look at these things in the round and not just from the police's perspective or that of the individual. That is an issue that is likely to come up, and I would like to understand the rationale or how it will work in practice.

Ms Boal: We can certainly discuss that with the police. They may want to think about that when arranging a time for somebody to come back. Maybe they could check with them first to see what time would suit and arrange a mutually suitable date. We can look at that.

Miss Hargey: My last question is a broader one about biometrics.

The Chairperson (Ms Bunting): Deirdre, can you hold on for a wee second? Ciara wants to come in on that specific point.

Ms Ferguson: Lisa, has this ever been flagged with the PSNI before? Generally, in my lifetime, those who have had to go back to the PSNI, for whatever reason, have been given a length of time to do that. Given that the PSNI station is open 24 hours a day and most people are working or whatever, they go in when they can. In my opinion, that has worked really well for the general public. Has any research been done previously? Has this been highlighted by the PSNI consistently over a long period? Is there any evidence for the change, or has this just come about as a result of your recent consultation with the PSNI?

Ms Boal: We have been looking at that solely in the context of the powers to take fingerprints and DNA. It has come about as a result of experience in England and Wales that led to legislative amendments being made there. That is the experience that we have learned from in making this amendment.

Ms Ferguson: Well, obviously, the England and Wales environment is totally different from that in the North, so I would not take that as read. At this moment, has no other localised research been done on this?

Ms Boal: The recall powers have not been used before for biometrics. They are new powers that will come in, so we do not have any experience of those particular powers working to date.

Ms Ferguson: No, I am not talking about the legislation. It is about going to the police station and an appointment for a specific date and time being made. What I described has always been the case and has never been flagged. Generally, then, there is no research and it has never been flagged as an issue, but it has been flagged now on the basis of the forthcoming legislation.

Ms Boal: It is based, I imagine, on the experience of taking fingerprints and DNA and the processes that have to be gone through.

Ms Ferguson: Thank you.

The Chairperson (Ms Bunting): I wonder whether that might be because only certain police officers, nurses or whoever can take DNA from a person.

Mr Laverty: Certain police stations are open only between certain hours, and others are closed to the public. There are designated stations where —.

Ms Boal: It has to be in a custody suite, and particular equipment has to be used. Sample bags and all that sort of material have to be ready to be used for processing samples appropriately.

The Chairperson (Ms Bunting): It is probably just to make sure that there are people there to do it. I presume that it is the same as when we get our pictures taken here for security passes and so on. The people who do that are not always here when we are here. That is an interesting one about the arrangements. As Deirdre asked, will people be afforded some degree of flexibility to find a mutually agreeable time? That is fair enough.

Deirdre, you had a final point to make.

Miss Hargey: It is about data retention and the use of data, particularly pertaining to young people. The Children's Commissioner and the Human Rights Commission have raised the issue of stigmatisation, as well as the principle of being innocent until proven guilty. It is about looking at some of the retention periods where young people are concerned, particularly around the Marper judgement. What engagement or stress-testing has there been around that? Is that part of the piece of work that you mentioned that DSO is doing to look at human rights compatibility? I would be particularly worried about the impact on young people.

Ms Boal: We have had some engagement with the Children's Commissioner and the Human Rights Commission, both of which have particular views on the retention periods contained in the legislation. We have tried to explain the rationale for the particular provisions that we have for children and young people: there are shorter retention periods and, for example, exemptions for first minor offences for under-18s. We have tried to explain the differences that we have made for children and young people in the legislation, and we also continue to engage with the Human Rights Commission and the Children's Commissioner as we work through the detail of our review mechanism, which will be an important safeguard to make sure that material is not held for any longer than is necessary. We are at the early stages of doing work on the review process, and we will continue to engage with the Children's Commissioner and the Human Rights Commission on that.

The Chairperson (Ms Bunting): Deirdre, do you want to follow up?

Miss Hargey: No. I will let somebody else in.

Ms Egan: Thank you for coming in today. To be honest, my question was about the PSNI's involvement in and input into the drafting of these amendments, but that was covered in Deirdre's questions. For my knowledge, I want a bit more information about what the stress-testing involves and what information you received as the rationale for some of these things: for example, the change in the grace period for holding fingerprints of individuals who are under investigation from 14 days to 28 days. There is a quite difference there. I want a bit more information, if you are able to provide it, on the rationale for that and the feedback that you received on it.

Ms Boal: It has been a two-way iterative process. We have worked quite closely with our colleagues in the PSNI who lead on biometrics. As we have been drafting instructions, dealing with queries from the Office of the Legislative Counsel (OLC) or thinking through how policy is intended to work, we have been thinking of questions that have occurred to us, such as, "How does this work in practice? What would this mean? How would this work for you?", or asking them, "What sort of scenarios could arise here? Give us examples of where this might be needed". They have also come to us proactively and said, "Well, if we have this, this could be the result", or, "If this situation arises, we would need a power to do x, y and z". There has been that two-way exchange on various things, and, obviously, we have been sharing drafts with them to let them see what the legislation is looking like and how that might work in practice.

On increasing the period from 14 to 28 days, we looked at that ourselves, discussed it with PSNI colleagues and took account of their feedback. We have to make sure that, if we are putting time frames for deletion into legislation, they are clear so that the PSNI has legal clarity on what the time frames are. We also have to make sure that they are reasonable and workable in practice and that they allow the time for the outcome of an investigation or court proceedings to be determined, finalised and communicated and for systems to be updated, allowing for glitches that may delay something. If proceedings come to a conclusion and there is no conviction but the police then want to make an application to the commissioner to continue to hold material, we need to allow time for that to happen. We have thought through how things would work in practice.

Ms Egan: I have another quick question. Obviously, I do not want to ask you to speak on behalf of another organisation, but it sounds as though there has been a good amount of collaboration. From your perspective, are you content that the PSNI is happy with the amendments and proposals that you have brought forward under the biometrics section?

Ms Boal: I would not want to speak for the PSNI. Obviously, we have not been speaking to the entire organisation. We have been working quite closely with the people involved in biometrics. We have worked on that with them, and I hope that they are as content as possible with what we have come up with. However, I do not want to speak for them. We have tried to get agreement with them on what we have put through and how it can work in practice to take account of all the issues that they have raised with us, and, hopefully, we have been able to do that. I do not want to speak for them on that —

Ms Egan: No problem.

Ms Boal: — but I hope so.

Mr Laverty: The intention is that, when it comes to implementation, we will be implementing provisions that have the support of operational partners. Something similar happened with the stalking legislation in the previous mandate. The preparation of drafting instructions heavily involved input from operational partners in the courts, the police and the Public Prosecution Service (PPS). As Lisa said about the biometrics, it is an iterative process. It is not that a document is produced, the police get an opportunity to consider it once and that is it. It is very much an ongoing process throughout the entire drafting of provisions.

Even at the point at which final drafts are produced, they are shared with the police and operational partners, the intention being that, once the legislation receives its scrutiny and is successfully passed by the Assembly, implementation is a straightforward matter. That is based on the legislation being what the police and other agencies expect it to be, rather than there being significant or widespread changes between the initial policy proposal and the legislation being drafted and coming into force. If the legislation is too different from what was originally proposed, it could present insurmountable difficulties . I do not think that there is any part of the Department that does not work extremely closely and hand in hand with the police when it comes to measures like this.

Mr Beattie: Very briefly, was the Independent Commission for Reconciliation and Information Recovery (ICRIR) involved in any of the stress testing? Have you any concerns about the Government's planned repeal and replace of the Legacy Act, such as whether it will be a known unknown or an unknown unknown when it comes to what will happen with biometrics over the next 12 months?

Ms Boal: No. We have not discussed it or done any stress-testing with the ICRIR. The ICRIR is not within our remit. Our remit has been focused around the PSNI, and, obviously, the ICRIR and legacy are the responsibility of the NIO. The Minister has made her position on the Legacy Act quite clear.

Re biometrics, the NIO has made provision for protected material to be used by the ICRIR. The discussions on how that will work in practice will be a matter for the NIO, ICRIR, the police and other operational partners.

Mr Beattie: I guess that that is a fair enough answer, but you can see the point that I am making. We are not involving the ICRIR to get information. If it gets to retain information from 1975 in a legacy case but we destroy evidence from 1975 in a rape case, for example, you can see that some people might be slightly concerned that there is one rule for one and a different rule for another. That is where I see that, whether we like it or not, there is a crossover.

Ms Boal: I appreciate that there is an interface and a difference in approach. The difference in approach is the result of the UK Government's putting in place legislation to protect material for legacy investigations. We are putting in place legislation to address the Marper and Gaughran judgements. It means that, if somebody is not convicted, the material will have to be deleted. If someone is under investigation, the material can be held while they under investigation. If someone is convicted, the material will be retained for the retention period that is relevant to their conviction and the nature of their disposal. The difference in approach between legacy cases and other historical cases is a result of the UK Government legislation and the Legacy Act.

Mr Beattie: It is. You are right, but it still affects the Department of Justice. I will leave it there. Thank you for your answer.

The Chairperson (Ms Bunting): Doug, I am grateful that you went down that road, because it was my intention to go down that road too.

I appreciate that is a while since we have had you here to discuss the Bill. I am still wrestling with the figure of three years. That also applies in the context of legacy, because, as we all know, not everybody who was involved has been investigated or convicted. I worry about the impact of that going forward, but I am also trying to balance it from the human rights perspective: if there is nothing on anybody's radar about you, why on earth would your DNA be held? I am just trying to work through that. Will you remind me of how you came to the three years?

Ms Boal: The three years is a specific provision that relates to when someone has been charged but not convicted. There are certain circumstances and criteria that have to be met for the police to hold that material for three years. That provision was previously included in the Criminal Justice Act (Northern Ireland) 2013 and reflects a similar provision in England and Wales. Given that that was a very particular circumstance where there was a charge but not a conviction, I do not think that anybody wanted to put it in place for a particularly long time, and, because it was a very sensitive and very particular provision for particular circumstances, it was a short retention period. There is a provision to seek a further extension to that through the courts. That is one particular provision.

If somebody is under investigation for an offence, the material can be held until criminal proceedings are completed. Whether it then has to be deleted or can be retained depends on whether the person is convicted.

The Chairperson (Ms Bunting): Does it apply only where the DNA is assigned to a specific person? Take, for example, some of the cases of serial killers and rapists in the US in the 1970s. The police had their DNA but did not know who it was, and only now — I think that this was the case with the "Golden State Killer" — have they been able to link the DNA to a person. Can the police hold DNA from a crime scene for more than three years if they do not know to whom it belongs? Is the issue purely if they take your DNA, or mine, and they know that it is ours?

Ms Boal: Crime scene material is held as part of the case file and will continue to be held while the case file is open. The profiles would be held on the case file. That is different from an individual's sample. If the police went back to that case file, took the sample from the crime scene or whatever, ran it against the database years later and got a hit from somebody, that would still —

The Chairperson (Ms Bunting): That is still fine.

You have been very clear about what your aims are. You are aligning with court judgements. Do you anticipate any changes or impact from any of this and from the Government's review of the Legacy Act?

Ms Boal: At this stage, we do not anticipate any changes needing to be made to our legislation to address legacy issues. Our legislation deals with material taken under Northern Ireland legislation. The UK Government have put in place measures to protect material for use by the ICRIR. I do not think that, at this stage, they envisage any changes being made to the biometrics provisions in the Legacy Act. We continue to liaise with them, but we do not anticipate any changes needing to be made to our legislation as a result of that.

The Chairperson (Ms Bunting): That is great. Thank you.

Does anybody have anything else that they want to pursue with regard to biometrics, or are we content to move on?

Ms Ferguson: My curiosity regarding the use of biometric data and DNA has been piqued. I understand that the PSNI uses an individual's DNA profile, but say that I were on the system and it flagged up that I was a second- or third-line descendant of the person whom you are looking for. How is it used by all?

The Chairperson (Ms Bunting): Do you mean genealogical DNA?

Ms Ferguson: Has the genealogical side of things been incorporated into the provisions?

Ms Boal: Forgive me, I am not familiar with the detail. We can come back to you on that if necessary. There is guidance in place around familial searching and how all of that is managed through the database. I am not familiar with the granular detail, but there is guidance in place around familial linking and how that is used.

The Chairperson (Ms Bunting): That may be a question that we can put to the PSNI.

Ms Boal: Yes. The PSNI will have the detail on that.

Ms Ferguson: That would be useful.

The Chairperson (Ms Bunting): That is more an issue for the PSNI, because the PSNI uses that.

Ms Ferguson: It is for individuals themselves with regard to biometrics. I think that it will be of interest to the general public and will spark up conversations about what is being collected, how it is utilised and the implications of that.

The Chairperson (Ms Bunting): It has been used in the USA through the people who can connect you with your relatives. You voluntarily submit your DNA. That is how the links have been established. That is a question that we can put to the PSNI. We will take a note of that.

Does anybody have anything else? Is there anything else that you guys want to say about biometrics, or are you content to move on?

Mr Laverty: Chair, if you are finished with the biometric material, are you content for the officials to excuse themselves, or would you like them to remain at the table for any follow-ups that might occur as we move through the other policy areas?

The Chairperson (Ms Bunting): I will leave that to members. Do you anticipate that you might come back to anything about biometrics, or are you content for people to head out?

Miss Hargey: I am content for them to go. Any follow-up may happen after the meeting anyway. If we can get written updates in response to the queries, that would be good.

The Chairperson (Ms Bunting): Andrew, I do not imagine that this is the last conversation that we will have about this issue.

Mr Laverty: Not at all.

The Chairperson (Ms Bunting): Presumably, as things arise, we can get in touch and ask you to come back in and so on. Just before you leave though, can I check with the team whether we, as a Committee, have all we need covered? I just want to make sure that there are no gaps and we have it covered. All good?

The Committee Clerk: Yes.

The Chairperson (Ms Bunting): Lisa, thank you very much.

Right, where are we now? What is the next thing? Restorative justice: who is up for that?

Mr Laverty: Restorative justice is for my colleague, Veronica. She is the head of the rehabilitation and reducing offending division in the Prison Service. Rather than attempting to rehearse the nature of the provisions, I will let Veronica speak for herself.

Dr Veronica Holland (Department of Justice): Thanks, Andrew. I am happy to give a short overview of the rationale and nature of the provisions.

Two elements are associated with the provisions. One is to deal with an oversight in the transfer of policing, security and justice powers at the time that they were devolved. The associated powers relating to the accreditation of organisations currently sit with the Secretary of State. There is an agency agreement in place on that, but one of the elements of the provisions is to address that aspect.

The other aspect reflects the fact that a range of work has been taken forward in this area over recent years. It is to put on the statute books the nature of that work and the related requirements that will be put in place. As for restorative justice more generally, there was previously a 2007 protocol. A review of that was undertaken, it was revised, and a new protocol was published in 2023. Associated with that piece of work, we are keen to expand the number of organisations and individuals involved in this sphere. The new provisions set out what the new framework will look like.

We also want to make sure that a robust framework is in place. We will introduce new practice standards and an accreditation framework associated with individuals who are taking part in restorative justice as part of the criminal justice process. The legislative provisions set out the requirements in relation to that. They will enable us to set robust standards for individuals who will be involved. Ultimately, that will ensure that we are satisfied that anyone who is working in this field can evidence that they have the necessary skills, experience and expertise, and that there is consistency of standards across the board in that area of work.

That is, in a nutshell, the two aspects related to the provisions.

The Chairperson (Ms Bunting): That is helpful, Veronica. Certainly, some of our issues have been around consistency, safeguarding and the processes. Deirdre and I have similar lines of questioning. I will let Deirdre go first. Then, if there is anything that I want to pick up on, I will do that.

Miss Hargey: Thanks very much, Veronica. My first question is about broadening accreditation and looking at statutory and non-statutory organisations. What safeguarding plans are the Department putting in place to ensure consistency in service provision and in the oversight role of the Criminal Justice Inspection Northern Ireland (CJINI)?

It is an important area of work. As the Victims of Crime Commissioner Designate reflected, we want to encourage more restorative practice for access to justice, but we must make sure that the service is not just monetised or commercialised in the way that mediation or restorative justice issues have been in America, where it is really those who can afford it who benefit. I want to look at that whole area of work.

What engagement have you had with the Criminal Justice Inspection on the proposed changes? Have you been engaging with those who are accredited at the moment on their views on how things could be improved in that area of work? Thanks.

Dr Holland: I will go through each of those points in turn. On assurances about the oversight and standards that will be in place, a key element of the work that we are taking forward is about ensuring that the processes and systems that are used are as robust as possible. The practice standards and the accreditation framework will set out clearly the practice and evidence of the experience, training and skills of any of the practitioners who will be working in that field. The focus of the changes has been on making as comprehensive and robust as possible the way in which the system operates and the assurances that we have about individuals and the process more generally. There were earlier discussions with CJINI about its role as part of the process. It was felt that there will be a material role for CJINI in inspection once the process is up and running and the scheme is operational. It is about ensuring that there is something material for CJINI to look at and review. CJINI will continue to have a role in undertaking inspections of the organisations and individuals undertaking restorative justice as part of its range of work more generally.

On the second aspect, the purpose of this is to try to encourage access to justice by enabling individuals to avail themselves of a restorative justice process. To address concerns around monetisation or commercialisation of the process, I will say, as I noted at the start, that the focus is on trying to ensure that the highest standards are applied and that there are assurances on that. For us, that is what is driving the change, as opposed to commercialisation or people making money from the process.

On engagement with the likes of the Criminal Justice Inspection as well as the accredited organisations more generally, that has been part and parcel of our process as we have gone forward. As I say, there was engagement with CJINI ahead of the changes being brought forward. We have a restorative justice working group, and the organisations that are currently accredited sit on that group. They, along with a number of other voluntary and statutory sector partners, have been fundamental in the revision of the process, the introduction of the new practice standards and the accreditation framework. They have seen the draft documentation, the processes, the standards that will be required and what the new process will look like. There has been a very positive response to the process that is being introduced and, ultimately, the standards that we trying to assure from the organisations that are currently accredited, as well as other partners that may be involved in the process going forward. There has been and will continue to be engagement with those organisations. The response to date has been positive. We have had very productive conversations with them about the practice standards and accreditation framework document and got their input on that.

Hopefully, Deirdre, that answers your three points, but, if there is anything that I have not covered, please let me know.

Miss Hargey: That is great for now. Thank you, Veronica.

Mr Bradley: I will pick up on a couple of points from the discussion. On the effectiveness of any new accreditation process and the criteria used for that, the fact that some of the people who will deliver restorative justice are involved in the planning of it is a bit like the police investigating themselves. More checks and balances are needed. Long-term evaluation and future-proofing of the changes need to be considered as well. I am wee bit worried about the effectiveness of any new accreditation process and the criteria used for it, because it will not have the pre-accreditation inspection that CJINI has and make the impact that already exists. How will you address that? It seems to me that you are broadening the avenues and bringing in more practitioners from whatever background — their background is irrelevant — but there does not seem to be any new checks and balances to ensure that you are bringing the right people and the right organisations on board.

Dr Holland: Thanks, Maurice. I will address those points as best I can. On your first point about accredited organisations being part of the process, it is a multi-agency restorative justice working group, so a range of organisations are involved in that. The other point, which I should have covered in my address because it will hopefully be helpful, is that, as part of the process of revising the protocol etc, an independent protocol lead has been introduced to drive forward the work. The lead has 15 to 20 years of experience in the area. The lead will ensure that the process is as robust as possible. We have had conversations and discussions with CJINI about the changes. CJINI will continue to be a fundamental aspect of the process more generally. We will retain CJINI's ability to undertake inspections when the revised process for the scheme is operational. There have been ongoing discussions with CJINI about the changes.

On long-term evaluation and future-proofing of the process, the changes are intended to ensure that we have in place as robust a system as possible. As part of the process being introduced, there will be a time frame associated with the accreditation of organisations. There will be a re-accreditation process. The interim protocol lead will be fundamental to decisions on the accreditation of organisations. At the end of the accreditation period, which we envisage will be three years, as part of the process, there will be review, and information will be taken annually from organisations that are providing services, to ensure that the Department and the independent lead in the area are assured about the quality of the work being undertaken and that there is sufficient evidence about the quality of service.

Hopefully, that addresses your questions. Again, if I have not covered something, I am more than happy to address that.

Mr Bradley: Deirdre raised the issue of monetisation of the process. Robust checks are needed to prevent the process becoming just an avenue to draw down funding. We must ensure that it delivers what it says on the tin. The monetisation aspect needs to be tightened up.

Dr Holland: That will be fundamental as part of the work that we are taking forward and that of the independent protocol lead. Our focus is on ensuring quality service provision and that we have the necessary checks, balances and assurance on the quality of service that is provided to individuals. As part of the process and the wider review associated with any measures that are brought forward, it is fundamental that information about the quality of service provision and the views of those engaged in the process feed into a review or outcomes-based process. That would enable the Department to be assured that the service provided is effective for those individuals who are going through the process, and that they feel that it is making a positive difference for them. The focus is on ensuring that we reduce and address the harm that has been caused to all parties that are involved in the criminal justice process. That will continue to be a key driver for us.

Mr Bradley: OK. Thank you.

Mr Beattie: I am comfortable with this, to be perfectly honest, but Deirdre and Maurice have raised valid points. We are talking about growing the restorative justice sector. I am trying to get a sense of whether we are talking about doubling it or trebling it; what is it going to be? As the sector grows, oversight will be diluted unless resource is set aside to make sure that oversight is in place. Can you give an idea of how you see the sector growing? What size will it expand to? Where will the extra oversight come from in a Department that is squeezed for money?

Dr Holland: Thanks, Doug. The current position is that there are two accredited organisations: Northern Ireland Alternatives and Community Restorative Justice Ireland. Our sense is that a number of other voluntary and community sector providers will be interested in engaging. It is likely that a number of the key organisations that are working in the field at the moment will do so. The extent of the expansion will also be dependent on the moneys that will be available to fund it and the extent to which the process is adopted and used by those who go through the criminal justice process.

We intend to take a phased approach in the first instance. We will look at an expansion into diversionary-type disposals in cases that are on the cusp of the criminal justice process. We emphasise in our engagement with our restorative justice working group that we are keen to have the system embedded and the process working, taking a phased approach and ensuring that it works well, before we do further expansions and roll-outs.

Mr Beattie: Having a robust way of registering the individuals who go into the sector is really important. With that comes robustness in being able to deregister individuals, and I see that you have that down in your amendments. It comes back to making sure that you can find the problem before it infects the whole system or resource. I take it that there is robust registering. If you feel that somebody is not up to speed with what they should be doing, how does deregistering work?

Dr Holland: The independent protocol lead will be critical to the oversight role and process. In the framework and practice standards that are being introduced, there will be a robust process when it comes to the requirements for those individuals. The requirements — evidence of experience, skills and training — will be clearly set out as part of the process. There is a re-accreditation process whereby individuals will have their accreditation for a limited period, after which they will have to go through the process, with the same assurances, again. Should something arise during an accreditation process, the independent protocol lead will be able to look at that and consider whether the accreditation should continue. Our view is that, through the enhanced practice standards and the accreditation framework, along with the role of the independent protocol lead, there are robust safeguards and checks on how the process will operate.

Mr Beattie: Thank you.

The Chairperson (Ms Bunting): I have a few bits and pieces, Veronica. I will follow on immediately from what has just been discussed. Doug spoke about resources, and you said that you would work through it, that people would apply and all the rest of it. I am trying to establish whether that process will be done by criteria and scoring or end up being first come, first served so that, when the budget is used, nobody else will be accredited. What are your thoughts on that?

Dr Holland: It may be helpful to set out that there are two elements to that: the accreditation and the resources that may be available for work to be undertaken. A key thing at present that I imagine will continue in the new process is that the pot of money that comes from the Department to the two organisations that are currently accredited is relatively small. The accreditation is important for them in tapping into and accessing other funding. The Department provides moneys of between £100,000 and £150,000. The organisations have access to a significant amount of money from other areas of government, including the Executive Office and the Department for Communities. In some cases, there are contracts in the region of or over £1 million.

There is a restorative practice piece and a restorative justice element. Restorative practice is about applying those practices but is not necessarily linked into the criminal justice sphere. The accreditation is not limited to criminal justice work being undertaken. We must provide assurance to other Departments and bodies that undertake work outside the criminal justice system. We see the accreditation and the funding of criminal justice work as two separate but — from the justice perspective, they are part of the jigsaw — intertwined pieces.

The Chairperson (Ms Bunting): That leads me to another question that I had not anticipated asking. Do you envisage those practitioners engaging in preventative work? Let me explain why I ask that. At present, there is a limited pool of funding, and those who engage in local work now find themselves competing with people who, traditionally, would not have been in their sector — in their lane, if you want. If people who are involved in restorative practice or restorative justice measures broaden their lanes and go into the preventative arena, that will impinge on funding for other bodies, which will now be in competition with people whom they had not been in competition with previously. Is that what you envisage? Do you envisage them going into the preventative space?

Dr Holland: Again, there is a distinction between restorative practice and restorative justice. We would reference the underpinning principles of bringing individuals together to try to resolve issues, reduce harm and get answers for individuals. There is the work that is being undertaken in relation to the criminal justice system that references restorative justice. A range of those organisations are also involved in restorative practice, so similar principles are being applied, but in other spheres. It is applied in, for example, schools and community settings. A range of work is undertaken by a number of organisations under other Departments such as Communities and Education.

If you were to look at the funding for a number of currently accredited organisations plus, I imagine, those in the new world going forward, for want of a better phrase, you will see that the Department of Justice funding for that is an incredibly small amount. A lot of the moneys come from the wider field of restorative practice. Inevitably, a greater number of organisations will be involved. For us, it is about trying to spread that practice and good standards across Northern Ireland. At the moment, the accredited organisations are not necessarily spread across Northern Ireland. It will be our aim to try to ensure that the service provision is spread across the locality, as well to ensure that the standards that are being adhered to are as high as possible.

The Chairperson (Ms Bunting): Thank you. Veronica. May I go back to a few basics, just for my understanding and to move this forward? I do not know whether everybody in the room is familiar with how the accreditation process already works; some may not be. It may be useful, perhaps not now but in a written paper —

Dr Holland: To set out the current processes and the new ones?

The Chairperson (Ms Bunting): Yes; to set out what they are now and what they will be, and also the deregistering. Following on from Doug, my question on deregistering is this: what is the process to remove a person or organisation? Ultimately, do the criteria for each aspect that are applicable to an organisation apply equally to an individual, or is there a difference? What are the criteria? What is the appeal mechanism? Having some understanding of that would help us to understand the whole process and see what you are trying to do here. That would be useful.

Maurice raised the issue of building in a review process after a few years. Restorative justice can be a great thing, but not so much if it is in the wrong hands. Bearing in mind everything that people in Northern Ireland have been through, they will seek reassurance that they can be confident that those who engage in restorative justice by day are not also engaged in other activities. That is a big thing for people in Northern Ireland. Can you give us reassurances around the process and the changes? Given that you are removing CJINI at the start, I would like reassurances on that, on the accreditation process and that individuals or organisations will be rooted out and kept far away from positions where they could be dealing with people and their families who are vulnerable. That is the first thing.

Dr Holland: I am more than happy to run through that with you, and I fully appreciate the concerns that you or others may have about that. From a departmental perspective, we are very much of the view that the process that is being brought forward is much more robust. There is a high standard of requirements for the individuals who will be coming through the process. There will be three tiers to the accreditation framework, with the highest level relating to criminal justice cases dealing with serious and complex matters. For each of those tiers, the expectation and requirements of what they have to demonstrate will be clearly set out. Those will relate to the length of time that they have been working in the field, their level of experience, and what that experience involves. It will also set out that certain levels of training and continuous professional development have to be undertaken.

There will be three tiers for the level of experience, skills, training etc that individuals will have to demonstrate as part of the process. We are satisfied that there is a robust process for what has to be shown and the skills that those individuals have to demonstrate, particularly given the vulnerabilities of the individuals who will be involved in the process by way of being victims of crime and those who may have caused the harm to those individuals. We will share that due process documentation with the Committee. It will be made available online as well. It is comprehensive, setting out what the process entails, what the requirements are, what people have to do and what has to undertaken to be able to deliver services in that field.

A fundamental of that is adhering to the rule of law. That is a key part of the process so that, as you say, you do not have individuals who are doing one thing by day and another by night. There is a robust process in relation to that. As well as the independent protocol lead having a key role in the accreditation process and re-accreditation process, if any decisions were taken on an individual being deregistered, we will also want to have a panel that would look at those cases and confirm that it was content with the position that the independent protocol lead took. The final part of the process in relation to that case would be the sign-off by the Minister.

It is intended that the accreditation would last for three years. There would have to be a further accreditation that is not in place at the moment. I think that the last accreditation was undertaken in 2010. There is not a re-accreditation process associated with that, albeit that individuals might drop out of the field. The intention is that we would have a three-year period, and, once that was coming to a conclusion, people would have to go through that process again and to demonstrate their experience and the quality of the work that they undertook. The independent protocol lead will have a key role in that. If something were to come to light that raised concerns during that process, there would be the ability to look at the continuing accreditation of an organisation. It would not be a case of having to wait until the end of the three-year period. As I said, the independent protocol lead will be a key element of that process more generally.

The Chairperson (Ms Bunting): Just to firm it up: the accreditation process itself will take three years. At the point at which somebody is accredited, for how long are they accredited before they need to renew?

Dr Holland: The three years is from the point when they are accredited.

The Chairperson (Ms Bunting): A three-year period and then another three years?

Dr Holland: Yes. If you were accredited in 2025, you will be re-accredited in 2028. In addition, there will be ongoing review and monitoring by the independent protocol lead of the work that they are undertaking. They will have to submit reports to the Department so that we can see the number and types of cases that they are involved in. As part and parcel of that process, we will want to get information and feedback from those who are involved in and receiving those services to ensure that they are satisfied and feel that the services are making a difference. "Evaluation" is probably too strong a word, but there will be an ongoing review and monitoring process. It will not be the case that individuals will just be accredited and there would be no oversight or engagement with them until the end of the three-year period. The oversight and monitoring of the work that they were undertaking would be ongoing.

The Chairperson (Ms Bunting): You have moved from a position where CJINI goes in to do the inspection in advance of accreditation to one where it goes in following accreditation. Will you outline your rationale for that and why it would not be helpful to have it do both?

On reinspection, the paper talks about accredited persons being inspected "from time to time". What do you envisage "from time to time" being, and what is the current reinspection period?

Dr Holland: On the first element of your question, as I outlined and as you will see from the provisions, the decision is that CJINI will continue to have that role once an organisation has been accredited and is undertaking work in that sphere. There was a range of discussions with CJINI ahead of those changes being brought forward. My understanding is that there was a sense that it was much better to have CJINI involved in oversight inspection monitoring when there was something material to look at on the work that was being undertaken, combined with the fact that a much more robust process is being introduced ahead of organisations being given that accreditation. There were ongoing discussions with CJINI on its role as part of the process more generally.

On CJINI's inspections, it is not that anything would be set in stone, but, as part of its programme of work more generally and under its powers, CJINI could decide to undertake inspections in this sphere. I envisage that, in all likelihood, it will do that. I envisage that, as part of the new process that is being brought forward, it will consider that, at a point in time, it can undertake an inspection to see how that is operating and, ultimately, make recommendations to the Department. There have been discussions with CJINI on that change being brought forward.

As I said, nothing is set in stone or is concrete for the inspections. I suppose that the wording "from time to time" is intended to give it flexibility to undertake an inspection on that area of work when it decides that it is appropriate or necessary to do so.

The Chairperson (Ms Bunting): Thank you, Veronica. To finalise: you will write to the Committee outlining how, essentially, you envisage, the process will change, what the three tiers are, what the criteria are, what the process to remove is and any appeal mechanism there may be, and how you will ensure that there is consistency between individuals and organisations across Northern Ireland. Is that fair enough?

Dr Holland: If it would be helpful, we are more than happy to provide the Committee with detail on that. As I said, the practice standards and accreditation framework has been drafted and has gone through review with a range of organisations. We are in the process of finalising that, but we can certainly set out a synopsis of probably two or three pages of the key elements of that and what it looks like. Once we provide that paper, if Committee members have queries or want further information, we will be more than happy to come back on that. Yes, I am more than happy to do an overview paper.

The Chairperson (Ms Bunting): That is helpful. Thank you very much.

Do any members have anything else on restorative justice? Do you guys on the Committee team have all that you need?

The Committee Clerk: Yes.

The Chairperson (Ms Bunting): That is all fine. Do you folks want to add anything else before we close off this section? No? Right.

Mr Laverty: I would not attempt to add anything to what Veronica has offered. [Laughter.]

It is an area on which Veronica has the knowledge. There is a great deal of detail, and she explained it very well.

The Chairperson (Ms Bunting): That is helpful. We will hear from you as we move forward, Veronica. Thank you very much. That is great.

Dr Holland: No problem. Thank you for your time. It is much appreciated.

The Chairperson (Ms Bunting): I originally said that we would move to AccessNI after that, but we may move to serious organised crime instead, because I think that there is stuff in relation to that that may impact on AccessNI. Are members content to move on to serious organised crime? Who is up for that, Andrew? Is it Katie?

Mr Laverty: It is Katie Taylor, who is the deputy director and head of protection and organised crime division. This is another area on which I have only very superficial knowledge, so I will spare my blushes and not attempt to talk about something that I know very little about. It is over to you, Katie.

Ms Katie Taylor (Department of Justice): Thank you, Andy. Thank you to the Chair and the Committee for the opportunity to discuss the proposed new organised crime offences. I will give a very brief introduction; I do not want to repeat what is in your briefing paper.

I think that we can all agree that organised crime groups cause extensive harm and exploit vulnerable people in our communities in order to further their criminal ends. Northern Ireland is currently the only area in the UK or Ireland without bespoke organised crime legislation, so the introduction of these provisions, if they are brought through, will bring us in line with neighbouring jurisdictions.

As you know, the main purpose of the new legislation is to create two new offences: participating in the criminal activities of an organised crime group, and directing the criminal activities of an organised crime group. At the outset, I should say that it is important to recognise that we do not anticipate that the directing offence will be used frequently, but we think, and operational partners agree, that it is an important tool to have in the toolbox for when it can be used. Members will also wish to note that, under current practice, those who direct and participate in the activities of organised crime in Northern Ireland would be routinely charged and, if the test for prosecution is met, prosecuted for offences related to the crime type that they are suspected of being involved in: for example, drug trafficking, money laundering, fraud, firearms offences, human trafficking or whatever that offence might be. Whilst those offences can still be utilised against those individuals to deal with the immediate lawbreaking, they do not take into account the organised crime element of the offending. The introduction of the new offences and the associated penalties will, we think, more accurately reflect the serious nature of that type of criminal activity and therefore act as a deterrent. It also sends a strong message that there are no individuals who are deemed to be untouchable from their criminality.

Over the past year, in finalising these provisions, we have carried out significant engagement with operational partners. We want to ensure that the new provisions provide a more flexible and future-proofed approach for law enforcement to capture involvement at all levels of organised crime. I am happy to take any questions on the draft clauses.

The Chairperson (Ms Bunting): Thank you, Katie. Doug has questions on the directing offence.

Mr Beattie: I want to ask about a very general point. I am in favour of a new law against directing organised crime, but I am trying to figure out how that is different from directing terrorism and how it all knits together in an action plan on paramilitarism, criminality and organised crime. Is there repetition in any of those, or can they all be brought together and used as one offence?

Ms Taylor: We have had internal discussions to look at the statute book and see what powers are already available. Terrorism legislation is a reserved matter, so the specifics do not sit within our gift. When talking to operational partners, their feeling was that it would be useful to have an additional power that looks at the specific way in which organised criminality can manifest itself here in Northern Ireland. The directing terrorism offence is phrased slightly differently. I do not have the provisions in front of me for the directing terrorism offence, but my recollection is that it is about directing the activities of an organisation, so we have a slightly broader interpretation. I completely take your point about the crossover, certainly between organised crime and paramilitarism, for example. It is our intention that these provisions could be used right across the spectrum, but we still think that there is value in having a directing organised criminality offence.

Mr Beattie: I absolutely agree with you. I think that there is merit in that as well. I am absolutely not against it; I am really in favour of it. One thing that perturbed me slightly was when you said that you do not envisage it being used a lot. It needs to be used a lot more, because a lot of the paramilitary groups are nothing more than organised crime groups, and those who are directing them need to be targeted quite specifically. That is what really took me to the point of saying that there is a crossover between organised crime and paramilitarism and in the language that we use when we talk about one or the other.

The new law that is being brought in could be useful for the action plan on paramilitarism, organised crime and criminality, so I am supportive of it.

Ms Taylor: On what we envisage about the frequency of the offence being used, I made that point to manage expectations. There is no doubt that the evidential threshold that will have to be met in regards to directing organised criminality will be challenging. The individuals who direct those types of organisations tend to keep themselves at arm's length from them. However, partners in other jurisdictions that have the offence have found that even just having the offence available to them means that the way in which cases are investigated or subsequently prosecuted can be worked around the fact that you have that offence and have very clear criteria in front of you in the legislation. It is not that we do not envisage its being used; it is about managing expectations. There are evidential challenges with a successful prosecution because of the way in which those individuals operate.

Mr Beattie: That is understood. Thank you.

The Chairperson (Ms Bunting): Katie, your most recent comments are an excellent segue into my questions. Obviously, in order to be charged with the directing offence, it needs to be proven that you are engaged in the participating offence, but, as you said, the kingpins whom you are going to try to reach with the directing offence keep themselves at arm's length from the things that might expose them to participation. How is that going to work?

Ms Taylor: We discussed the issue at length when we were engaging with partners and drafting the provisions. The participating offence has been drafted quite broadly in terms of the activities that it captures, but we have tightened it in terms of safeguarding by emphasising that participation needs to relate to criminal activities. We define that as a serious offence that is indictable for four years or more. We say in the provisions that, in order to participate in the criminal activities of an organised crime group, the facilitator:

That is intended to capture those individuals who keep themselves at arm's length in the space of directing and those who might keep themselves at arm's length by, for example, driving someone to and from a crime scene or facilitating them through money laundering or something that is slightly removed from the day-to-day operations of the organised crime group but which facilitates it in its activities. We think that the fact that we have that there and that it is drafted in a way that is somewhat broader means that, if you have the evidence that someone is directing the organised crime, you should have sufficient evidence to prove that they meet the threshold for participation, which is the first test for directing.

The Chairperson (Ms Bunting): I understand how one naturally follows the other, but I am interested in the practicalities of how you will get the people whom you are aiming to get through the provisions. Have you had conversations with the National Crime Agency (NCA) in that regard?

Ms Taylor: Yes, we have engaged extensively with operational partners throughout the drafting of the instructions, primarily the NCA, the PSNI and the PPS. We have had conversations at a high level with organised crime task force partners more generally, but those are the organisations that were most heavily involved in the iterative process that Lisa described earlier in terms of looking at provisions and having those conversations. Of course, the advantage of engaging with the NCA is that it operates in various jurisdictions, so it is able to share its knowledge and expertise about what has worked well in other jurisdictions.

The Chairperson (Ms Bunting): That is helpful. Before we move on to what works well, with regard to the participating offence, people will claim that they are coerced. We have seen what we know locally, and the Department's arm's-length body the Executive programme on paramilitarism and organised crime (EPPOC) has adverts that indicate that people are coerced. What happens there? I presume that that is taken into account as mitigating circumstances. Is that how that will operate?

Ms Taylor: Consideration was given to the need for a statutory defence to be included, but, again, from talking to operational partners, the PPS and others, we know that they are of the view that that is already provided for through independent prosecutorial discretion and the common law defence of duress. That can be taken account of as part of the process.

The Chairperson (Ms Bunting): Thank you. I have two final questions on this. You said in the paper:

I think that it will enhance public confidence if people see that it works. If they do not see that it works, it has the potential to be damaging to public confidence. What factors did you consider in that? How are you sure that it will deliver? What are you aiming for it to look like? If you are not going to use the directing thing much, tell us what is in your mind's eye with regard to this.

Ms Taylor: In terms of?

The Chairperson (Ms Bunting): Success. What does "good" look like? If the aim here is to bring those people down and inspire community confidence, there is potential for it to go the other way if you cannot do it. So, how are you going to ensure success?

Ms Taylor: As I said, this was an iterative process with partners, and we were very keen that we did not introduce legislation that could not be utilised on an operational basis, because I completely agree with you, Chair, that it could be damaging if it is not used or not used successfully. On the participating offence, from speaking to colleagues in PSNI, we know that their anticipation is that there will be cases for which they will be able to make good use of the additional powers that will be available to them. As part of the process for developing the provisions, for example, we had a look at previous cases that had made their way through the courts and tried to workshop how the powers would have been used had we had them available to us. We have those kinds of assurances to make sure that the powers are operationally viable and that they can be utilised.

The Chairperson (Ms Bunting): That is good to know. Thank you.

Finally, all the time, we are faced with the business of people engaging in the activity and then saying that the organisations did not sanction it. The cynical among us will imagine that there is very little that goes on without the organisations saying that you can do it, because I imagine that the individuals pay a price if they go off on solo runs. How does the proposed law handle circumstances where people claim that it is an individual solo run and is not sanctioned by a proscribed organisation/organised crime gang?

Ms Taylor: Chair, I am looking at the exact detail of the wording to see whether I can provide you with some assurance from the drafting itself. First, operational colleagues will be better placed to speak to the prosecutorial and evidence-gathering challenges that will be involved and the specific mechanisms that they will use around that. When it comes to the drafting, we have a number of safeguards. For example, for the person to be guilty of an offence of participation, the criminal activities that were capable of being facilitated by the person's act do not actually have to be carried out. It is the intent there that is the first element. The person does not have to specifically know any of the persons who are members of the organised crime group. It is about proving that the act that they have carried out is a criminal activity of an organised crime group or will facilitate or be likely to facilitate an organised crime group. The threshold that falls within that — I will try to find the exact wording for you — is effectively that the person:

the act would facilitate the activities of an organised crime group. There are mechanisms there if you have the supporting evidence that the person should have reasonably known that the activities that they were carrying out were going to be to the benefit of the organised crime group.

The Chairperson (Ms Bunting): I understand that. That takes us back to the coercion factor. I presume that that fell under discussion as you moved through this. That is helpful to know. Thank you very much.

Miss Hargey: Thanks very much, Katie. My question is about what informed the definition of an organised crime group to link to the amendments. There has been a lot of discussion about paramilitary groupings. At a community level, that is probably what people see and think about when they look at organised crime, but it is obviously much wider. You touched on engagement with the NCA and others, but we are on an island here with the South of Ireland. I am keen to know what engagement there has been with other agencies on a cross-jurisdictional basis, even to do with how some of those groups bank. They may be in the North of Ireland and be banking in the South or across the water. How would engagement work at a European level? Is anything coming out of the Windsor framework that may have an impact on this work and on the definition of an organised crime group?

I wanted to ask a quick question about flexibility to change things as we move forward, particularly given the potential for online organised crime and how some of those groups may begin to develop and diversify with the emergence of more technology such as artificial intelligence. Are we thinking about those issues? Are they being discussed more broadly across these islands or, indeed, at a European level? We may need to look at that in the longer term as well, and we may need to change our definition of what we see as organised crime groups.

Ms Taylor: I will try to address those in order. On the definition, I want to reassure members of the Committee that the engagement that we had was with operational colleagues locally and with colleagues in Scotland, England and Wales and in Ireland. We spoke to colleagues there and had quite extensive conversations about how the provisions are operationalised there. The definition that we have gone for has good alignment with other jurisdictions, and we thought that that was important, particularly given the cross-border nature of organised criminality, which we are acutely aware of, and the need to be able to future-proof some of that.

We are very cognisant of future-proofing for the evolving nature of organised crime. We have included a power to amend the definition of criminal activities, which is the linchpin in the legislation to define what participation looks like.

That would be subject to affirmative resolution by the Assembly, but there is a power there that, if, in five or 10 years' time, we feel that that needs to be updated, it could be done.

On the cross-jurisdictional or cross-border nature of organised crime, you will see that, within the provisions, we have provided mechanisms that recognise that not all the activities of the organised crime group need to take place in Northern Ireland for them to be applicable as part of the evidence for that.

I completely agree that that is a very good point, and it is one that we are very aware of. The cross-jurisdictional nature of organised crime has to be built into this; otherwise, it will be workable only up to a certain point.

Miss Hargey: At the European level, are you aware of anything from the Windsor framework that may be coming down the line or anything that has implications because of the framework?

Ms Taylor: Apologies to Deirdre. I missed that one. We did an initial screening against the Windsor framework and ran that past the DSO, and it has no concerns at the moment. However, we are in the process of doing a more detailed screening against the Windsor framework, and, if anything arises from that, we can bring it back to the Committee.

Miss Hargey: That is great. Thank you.

The Chairperson (Ms Bunting): May I check one thing, Katie? You talked about the other jurisdictions. How do the sentences that you propose compare with those of the other jurisdictions for similar offences?

I will bring you in after this, Justin.

Ms Taylor: I have a nice table here somewhere with comparisons. I am trying desperately to find it. We have proposed 10 years, a fine or both for participation and 14 years, a fine or both for directing. Across the other jurisdictions, you find comparable tariffs in Scotland. They are slightly higher in Ireland: participation is 15 years; directing is life imprisonment. They are slightly lower in England and Wales. They do not have a directing offence, so there is no direct comparison for that. However, for participation, their maximum tariff is five years against our 10. So, the sentences are broadly comparable, but there are some slight differences across them.

Mr McNulty: Thank you, folks. On organised crime and legacy, historically, we have recognised that there were terrorist organisations that were heavily involved in organised crime, racketeering, armed robbery, kidnapping and extortion. The IRA and the UVF were involved in the same business, if you like. How does that relate to the legislation when it comes to the proceeds of organised crime and where the proceeds of that organised crime still exist? How does it tie into the legislation, if at all?

Ms Taylor: On the proceeds of crime, the consequential amendments that you can see in the draft instructions mean that the offences would be applicable to the Proceeds of Crime Act 2022 (POCA). So, effectively, that legislation could take account of those offences in considering whether the proceeds of crime could be brought forward as an additional mechanism.

Does that answer your question, Justin? Sorry, I am not sure. It does not really address the legacy point, I suppose. I was not entirely clear.

The Chairperson (Ms Bunting): Justin, can you hear us?

Mr McNulty: I am here. I was pausing to see whether Ms Taylor digressed further. I am just curious to know where this sits in relation to the historical proceeds of crime, such as bank robberies. How does this legislation sit with that?

Ms Taylor: I would have to check how POCA deals with legacy offences. I do not have that information in front of me, but, certainly, I am happy to write to the Committee on the detail of that. I do not have the details of the POCA provisions in front of me, I am afraid.

The Chairperson (Ms Bunting): Are you content to receive a response to that in writing, Justin?

Mr McNulty: Yes, please. Thank you.

The Chairperson (Ms Bunting): That seems to be all from us on serious organised crime. Does anybody have anything else that they want to flag or ask? Speak now or hold your peace, and we might need to get the witnesses back. Everybody is fine. Do you guys want to add anything?

Ms Taylor: No. We are conscious that it is a new policy area, so we are happy to come back and brief you in more detail at any point, if that is helpful.

The Chairperson (Ms Bunting): We really appreciate that, Katie. As we take evidence, we anticipate that issues will arise and that we might need to check those with you.

Ms Taylor: That is no problem at all.

The Chairperson (Ms Bunting): The Committee team has all that it needs on that matter, so thank you, Katie. That was much appreciated. We will move on to AccessNI now.

Mr Laverty: I am tempted to say that you have been left with the Statler and Waldorf of the Department. [Laughter.]

However, Brian is definitely nowhere near as grumpy as I am every day, so it is not a good analogy. Brian is, if I have understood his title correctly, the operational manager of AccessNI. He has extensive experience and a career of similar length to mine. He is definitely the best person to talk to about all matters to do with AccessNI disclosure.

The Chairperson (Ms Bunting): Brian, do you have anything that you want to say to us, or do you want to go straight to questions?

Mr Brian Thomson (Department of Justice): I have a few opening comments, if that is OK.

The Chairperson (Ms Bunting): Lovely.

Mr Thomson: You probably know some of it. I think that this is the first time that someone from AccessNI has attended this Committee, so, hello. I am grateful for the opportunity to share a little about what we do in AccessNI.

I am here to talk about the work that we have been doing around the list of specified offences. That list is an integral part of the AccessNI filtering scheme. It sets out the serious violent and sexual offences that, essentially, cannot be filtered from standard and enhanced AccessNI checks. Aside from a few marginal changes, the list has not been reviewed since it was introduced in 2014. The Department commenced the current review of the list in 2023. Among the things that the review found was that the manner in which the offences are presented in the Police Act 1997 is difficult to navigate. The Police Act is not user-friendly, particularly when it references offences in schedules to other legislative instruments that then reference schedules to other legislative instruments. We are really talking about lists of lists when we are trying to identify offences that should not be filtered.

The review identified some risks to the AccessNI filtering arrangements. There is a risk that AccessNI might not pick up new offences that were added by, for example, another Department to the schedules that it was managing. That could mean that AccessNI might filter those offences that really should not be filtered. That is a real risk for the AccessNI operational environment.

The review identified that the maintenance of the list was inconsistent and, arguably, disproportionate. It identified a need to ensure a regular review of the offences, not something that happens once every 10 years. It also identified a number of new offences that could have been added to the list since it was first introduced.

Finally, we recognised that there were some opportunities to reduce the size of the list that is published on the nidirect website. The review's proposals were subject to public consultation in the summer of 2023. Essentially, clause 29A of the Justice Bill seeks to amend section 113A of the Police Act in order to implement the improvement proposals that emanated from the review. The amendments seek to streamline arrangements for the maintenance and ease of understanding of the list and to provide greater clarity in that area of AccessNI's work. I will stop there to take any questions, folks.

The Chairperson (Ms Bunting): Thank you. I did not realise this was the first time anybody from AccessNI has been at the Committee. You are very welcome. It is good to have you with us. Hopefully, it has not been as bad as you might have thought or been told. We are really not that bad. [Laughter.]

Mr Thomson: I am saying nothing.

The Chairperson (Ms Bunting): Yes, say nothing until you are a mile out. Quite right.

Does anybody have anything on AccessNI?

Ms Ferguson: I have one immediate question. You mentioned the list and the links to other legislation, and you said that you want to make it easier to understand, but you also said that you are trying to reduce the size of what is published on the AccessNI website. I am trying to understand how you can do that and make it easier to understand and clearer. I worked on an AccessNI helper group in my day. I was involved in training, facilitating and continually reviewing the list for organisations and groups, and I understand the links. How will you reduce it?

Mr Thomson: An example from the published list is section 4 of the Misuse of Drugs Act 1971, which is on the supply and production of drugs. There are 125 entries on the current published list for one provision in the Misuse of Drugs Act. We will shrink it to one entry and call it "Supply and Production of Drugs". The current list contains all the different types of drugs — cocaine, heroin or whatever — and it is not necessary. We are interested in section 4 of the Misuse of Drugs Act. If someone is convicted under that, we will retain that on their disclosure certificate and disclose it.

Mr Laverty: The benefit is that you would be looking at one place. When the OLC was preparing the provisions for us, it used a term that was very helpful in picturing how difficult it is to navigate the list: it described it as a "Russian doll" exercise. If you click on the list, it directs you to, as Brian said, a schedule of offences, and, within the schedule, there is a link to another series of offences. You need to be an experienced practitioner of legislation to follow those threads. There is a direct link to the rehabilitation of offenders legislation, and I am responsible for maintaining the original intention of that legislation, which is to offer certainty and ease of understanding.

The two pieces of legislation dovetail in quite a lot of ways. The changes to the Police Act that Brian talked about will be replicated in the rehabilitation of offenders legislation. It is about making it easier to manage from a departmental and AccessNI perspective, but also much easier for an end user. A member of the public who might have a conviction could check much more easily than they can now. At the moment, they might be directed to Citizens Advice, the Northern Ireland Association for the Care and. Resettlement of Offenders (NIACRO) or their legal representative to seek clarity on whether their offence could be filtered.

Are all members familiar with the filtering scheme and what it does?

Mr Thomson: Shall I?

Mr Laverty: Please.

Mr Thomson: AccessNI used to disclose every conviction about everybody going back any number of years. A review was conducted in 2011, and one of the recommendations was that old and minor convictions should be removed from disclosures before they are issued. In the legislation that came forward on the back of the review, "old and minor" was determined at about 11 years. Therefore, if a conviction is more than 11 years old, it is considered for filtering. There are a couple of exclusions. If the conviction resulted in a custodial sentence or is on the list of specified offences, it is never filtered. The list is quite extensive, and you can see it in the schedule. A lot of serious offences are included.

Ms Ferguson: I have a second question on the changes. What, if any, financial implications are there for AccessNI? Will there be unintended consequences of reducing the specifications for the filtering process? I am sure that that is done electronically. Will there be any IT implications? Have any implications or unintended consequences been identified?

Mr Thomson: We are simplifying what is in the Police Act and what is in the
Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 to make that easier to run.

We do not envisage there being any cost or savings as a result of doing this; it is just about making things a little easier to understand. As for unintended consequences, we are taking something that is there and changing it around. We do not expect that people will find more or fewer convictions being disclosed as a result. We would like to review the list further. We want to create a committee to start to look at the convictions on the list and decide whether it is right that they continue to remain there going forward. That is part of the provisions that we are creating when we talk about the Department consulting representatives from the Department of Health, the PSNI and the independent reviewer. We can look and say, for example, that a very common offence is criminal damage, which is a specified offence and will always be disclosed. If that criminal damage was perpetrated by someone who was 16 years old, it will always be disclosed. However, if the new committee were to agree that, going forward, we could remove it from the list, that might have consequences for the individuals who have convictions such as that.

Ms Ferguson: Thank you.

The Chairperson (Ms Bunting): I have a couple of questions, Brian, if that is all right. I assume that the new offences under serious organised crime will be included in your whole process.

Mr Thomson: It will be for Katie and her colleagues to let us know if that is what they want us to do, but, yes, that is the way that it tends to pan out.

The Chairperson (Ms Bunting): It will be covered. It is not that you have missed that.

Mr Laverty: No. There is a continuous review process when a new offence and penalty are created in statute. It is considered for biometric retention purposes and for Access NI disclosure and rehabilitation purposes. There is a third purpose in the policing policy and strategy division, but my old-man memory cannot recall it. It will occur to me at some stage tonight.

The Chairperson (Ms Bunting): That is OK. You can message us. We have all been there. [Laughter.]

Mr Laverty: I would not suggest that I start contacting you at that stage, "Oh, by the way —". I reassure you that there is a formal process that is intended, for those purposes, to capture any new offences and penalties that are added to statute.

The Chairperson (Ms Bunting): That is good to know. May I direct your attention to paragraph 6 of the report? I do not know whether you have a copy of the report that came from the Department, but paragraph 6 states:

I am thinking about potential employers, for example. That could be a big risk for them. It goes on to say:

For that risk to be reduced, we need to have some understanding of a baseline for the number of times that it may have happened. How many of those do you anticipate? To what extent will that cause considerable additional work for the PSNI? That may have resource implications.

Mr Thomson: We do that anyway. In the current process, if we are looking at offences and removing some offences because they can be filtered, we will send that referral to the police anyway and ask, "Look, is there anything in the background of this offence that you think merits it being retained?". Maybe information will be added as a result of the police information. It gives us that safety blanket that we are not missing something. We do that anyway as part of the overall filtering scheme.

The risk goes back to the entry on the current list of any offence involving injury or threat of injury to another person. Our preference is that the list actually includes the offences, not just some vague description, "Any offence that might that might do dah, dah, dah". We argue that, if offences result in injury to another person, they must be on the list. You do not need that statement. What we were saying, Chair, was that, going forward, the statement is not required on the list, because the offence will be on the list.

The Chairperson (Ms Bunting): Is filtering an automated process or a process that people have eyes on? You are saying that you do this anyway: that you see what is happening and ask the police for their input. Things may have been erroneously removed. Are you always checking? Do you take random samples? How do you ensure that what needs to go to the police goes to the police?

Mr Thomson: It is a manual process. Our staff have eyes on it, and they apply the filtering rules to convictions as they pull them off the Police National Computer (PNC). Percentage checks are undertaken on the work of staff. Some staff attract higher percentage checks, with the percentage working its way down to, I think, 15% or 20% for those who are more competent in their work.

The Chairperson (Ms Bunting): I will go back to my previous question. You say that you do that anyway. There may or may not be teething issues with this, but, in the long term, do you envisage that the changes to the filtering process will result in an additional burden for the PSNI?

Mr Thomson: Not with the changes that we are proposing here. If, down the road, we were to make a change to the filtering scheme so that, instead of waiting 11 years before filtering a conviction, we reduced that to seven years — we do not have plans to do that at the minute — that might result in more cases being referred to the police at that stage.

The Chairperson (Ms Bunting): You do not envisage a resources impact from that.

Mr Thomson: No.

The Chairperson (Ms Bunting): All right. I have just a couple of other questions. As I was going through the list of offences, I noticed a lot of references to girls, girls under 16 and so on where there are not references to boys. The list specifies abduction and kidnap of girls but does not mention boys. It talks about prostituting girls but does not mention prostituting boys. Likewise, in the human trafficking arena, there is a lot of mention of sexual exploitation and much less mention of forced labour. Is there a reason behind that? Are we missing something? Are there gaps? I imagine that those offences are more likely to happen to girls than to boys, but they will still happen to boys. Are we sure that boys are covered?

Mr Thomson: That is probably a question for the policy people in the Department, if I may say so. We are simply pulling offences off the legislation that is there.

The Chairperson (Ms Bunting): My head turns immediately to Andrew. [Laughter.]

Mr Thomson: Sorry, Andrew.

Mr Laverty: I think that I am safe in saying that the references are to offences that already exist in statute. They are not general offences. If the list refers to an offence specifically in relation to a girl under 16, it is because the underpinning legislation makes that a specific offence, whether it is in the Sexual Offences Act, the Sexual Offences (Northern Ireland) Order or the Criminal Justice (Northern Ireland) Order. I cannot speak to the intention behind including that specific offence and not an equivalent offence for other sexes or ages, but it is about capturing offences that already exist rather than including a generic, umbrella term.

The Chairperson (Ms Bunting): I know, but I think that the offences of prostitution of young boys and of kidnapping and abduction of young boys already exist. That is why I am asking.

Mr Laverty: You are asking why those offences are not there.

The Chairperson (Ms Bunting): Yes. Will they be looked at? Why is there a greater emphasis on one than on another? There is a spotlight on women and girls now, but, in general, we need to protect young people. We need to protect those who are in forced servitude as well as those being sexually exploited, because they have been trafficked. Is there any intention from the Department? OK, it has been flagged in the course of AccessNI filtering policy, but is there an intention to look at the fact that young boys may not be protected in the way as girls are?

Mr Laverty: It is not a piece of work that I am familiar with. It does not come within my remit as part of criminal law branch, but I could certainly have a conversation with colleagues in the criminal policy unit, who have responsibility for sexual offending offences, to see whether that is on their radar and, if not, whether senior colleagues wish to consider it with a view to answering the questions that you have asked. I cannot address that today, but I am happy to have the conversation when I go back to the office.

The Chairperson (Ms Bunting): I am interested to know whether that means that we have a gap there and whether, if it exists, we need to address it.

Mr Laverty: You are asking whether there are gaps in the legislation that need to be considered.

The Chairperson (Ms Bunting): Yes. The Senior Assistant Clerk, has just told me that some of the legislation is from 1956, so that might explain some of it. When we look at these things —.

Mr Laverty: You need to be careful to read things in sequence, because there will be offences that were brought in, say, in the 1970s that were then repealed and superseded using gender-neutral terminology in the 1980s, 1990s or 2000s. As I say, I have a working knowledge of some of the sexual offences legislation, but it is not that in-depth.

The Chairperson (Ms Bunting): It is not your area of expertise.

Mr Laverty: I am happy to pose the question to colleagues on the basis that it is a concern that you have expressed today.

The Chairperson (Ms Bunting): That is great, Andrew. Thank you very much. I appreciate that.

Does anybody have anything further on the AccessNI filtering? No.

Has the Committee team got all that it needs? Yes, our bases are covered.

Does anybody have any other general questions that have arisen in the course of what they have heard today and that they want to put to the departmental officials now? Everybody is good. Thank you very much, gents. That is great.

Mr Laverty: Chair, I talked earlier about indicative deadlines and our failure to meet those in a couple of instances. I mentioned the delegated powers memorandum, which we were slow in bringing to you. I am conscious that we did not meet the indicative timeline of the end of the calendar year for giving you the text of the live link amendments. I take it from the gesticulations that you have now received those amendments. If you do not have a copy of those in order to inform discussions on the issue next week, I am happy to put my name forward for early retirement, if heads need to roll. The covering letter will make it clear that it is a working draft that is in a significantly advanced state of preparedness, but it will still be worked on further. By Friday 31 January — this is one that I really will hang my hat on — you will have a further refined and finalised version of the amendments that is capable of being published as part of your call-for-evidence process.

The Chairperson (Ms Bunting): Andrew, here is the thing with all this: we are fine with that. We want the work to be done and done right, so we are OK with that. I will tell you where we take a bit of exception. We try to factor those things in, because we get to ask for one extension to a certain date, and. if we do not hit that date, there is no chance to redo it; there is no mulligan. From our point of view, we needed to build in some flexibility, particularly because we did not know the scale or scope of what would come forward. We needed to afford ourselves a bit of time, because there will always be slippage and things that arise. We will never crucify people over that, provided that we know what the issues are, but, in return, we expect the Department not to come after us for trying to allow a bit of flexibility in the system and to allow us to do our work properly. We want you to get the chance to do yours properly, and we want the chance to do ours properly. That is all.

Mr Laverty: In this instance, I will not go into the detail — I could explain what happened and why — because I do not want it to sound like excuses, but, essentially, we lost two weeks at Christmas. We could have produced a version, but we would not have been that confident that there would not have been issues identified with that version had it been published.

The Chairperson (Ms Bunting): Honestly, we are OK with that. We are genuinely OK with it.

Mr Laverty: In actual fact, your judgement call in holding the call for evidence until February worked in our favour, because, in the interests of producing the best possible amendments that we could, you gave us an extra two weeks, which means that we will meet your deadline for publishing something that stakeholders will not identify a lot of issues with.

The Chairperson (Ms Bunting): Our view is, "Look, let's all just get this right".

Mr Laverty: Yes.

The Chairperson (Ms Bunting): We have no problem with that, if we are kept apprised of what is happening and if people are trying to get it right, but I must say that we all take exception when the Department says to us, "You are being ridiculous". It is the Donald Rumsfeld thing: we do not know what we do not know yet.

Mr Laverty: Yes, you are absolutely right.

The Chairperson (Ms Bunting): That is where we are with that. That is fair enough, Andrew. We appreciate your candour on that. Thank you.

Mr Laverty: No problem. I will see you next week, because I will be talking specifically to the rehabilitation of offenders amendments, so I look forward to more conversation then.

The Chairperson (Ms Bunting): We will see you then. That is great. Gents, thank you very much for your time. Have a lovely weekend, whenever it eventually begins.