Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): With us is Judith Bailie, who is a researcher with the Assembly's Research and Information Service (RaISe). Judith will provide us with a briefing on the amendments to the Justice Bill with regard to biometrics.

Judith, it is great to have you with us again. We look forward to hearing what you have to say. We have read your presentation, so I will hand over to you, and then we will open up the floor for some questions.

We are having some technical difficulties around putting the presentation on the screen.

Ms Judith Bailie (RaISe): I can just talk through it. You have a copy of it in your tabled packs. Hopefully, you can follow along. I will crack on.

Thank you, Chair, for the invite to address the Committee on the Justice Bill this afternoon. As you said, today, I will look at Part 1 of the Bill, which covers retention periods for DNA and biometric material in more detail. I aim to go through the Bill as drafted to highlight the impact of the proposed legislative changes and some potential areas for further scrutiny. The Department has also proposed a number of amendments to the Bill, which will be introduced at Consideration Stage. I will do my best to give an overview of those as well.

I know that the Committee has a busy agenda today, so I will try to cover the biometric data proposals as succinctly as possible. As you know already, biometric data is a complex and developing area with different legal frameworks and oversight arrangements in operation in other parts of the UK. I am sure that other stakeholders will be able to provide useful insight into that as well, including the Scottish Biometrics Commissioner, who you will be hearing from later.

The first slide in my presentation covers a bit of background about biometric data, as well as some developments relating to the Marper and Gaughran European Court cases and developments since then. I covered most of that previously, when I was here in September to talk about the Bill. Is it useful for me to cover that again for the Committee? If not, I am happy to skip on to my next slide and just get straight in to the Bill.

The Chairperson (Ms Bunting): Members, are you content that you have sufficient background?

Mr Baker: If it is not too much trouble, I would like to hear about it.

Ms Bailie: Absolutely. That is perfect.

The Chairperson (Ms Bunting): That is all right, Danny. It is important that everybody is up to speed on it.

Ms Bailie: First of all, what is biometric data? Generally, it is the term used for fingerprints, as well as DNA profiles. Those are unique identifiers derived from a physical sample of DNA that might come from blood, hair, saliva etc.

Biometrics can be used to identify a particular individual and are routinely used by the police as an important resource in all kinds of criminal cases.

The existing legal framework in Northern Ireland is found in article 64 of the Police and Criminal Evidence (Northern Ireland) Order 1989. That allows for the indefinite retention of biometric materials, including DNA samples, profiles, fingerprints and palm prints.

Biometric data retention is an area in which there is a need to consider article 8 of the European Convention on Human Rights around the right to respect for private and family life. In recent years, there have been two European Court of Human Rights judgements relevant in that area.

The first was S and Marper v UK back in 2008. That considered the retention of fingerprint and DNA data of two people suspected, but not convicted, of offences in England and Wales. The court considered that the blanket and indiscriminate power of retention was a violation of article 8, particularly given the absence of any time limit and lack of any independent review mechanism.

That case was followed by Gaughran v UK in 2020. The case involved an applicant with a spent conviction for driving with excess alcohol in Northern Ireland. The European Court held that there had been a violation of article 8 due to the indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph of the applicant. Again, the lack of any possibility for review was highlighted.

During that period, the Criminal Justice Act (Northern Ireland) 2013 aimed to create a compliant retention regime. However, it was not possible to commence the biometrics provisions due to the need to preserve material that might be required for future legacy investigations.

Separate from the Justice Bill, the UK Government made regulations, which came into force in May 2024, that provide for the retention of biometric material that otherwise must be destroyed under various statutory destruction provisions. That material is for use only by the Independent Commission for Reconciliation and Information Recovery in conducting investigations. Those regulations also require the commission to carry out periodic reviews of the need to retain the biometric material and require that biometric material be destroyed if it is no longer needed.

At present, the PSNI has an interim service instruction on the retention and deletion of biometric material. The service operates a biometrics ratification committee that considers applications for deletion from local and national biometrics databases, so the likes of the national DNA database, the local Northern Ireland DNA database and the national fingerprint system, and the paper sets that are held locally in the PSNI fingerprint bureau. There is also a police national database that holds custody photos. Deletion requests will cover an applicant's DNA samples, DNA profile derived from any sample, fingerprints and palm prints, as well as any custody photographic images.

I will move on to my next slide, if you are able to follow along. Part 1 of the Bill follows a consultation by the Department of Justice in 2020 that focused on the maximum time period for the retention of biometric data. That has resulted in a 75-, 50- and 25-year model that is reflected in the Bill. That means that there will be a 75-year retention period for DNA and fingerprints for convictions for all qualifying offences. Those will include serious violent and sexual offences, regardless of age. That is followed by a 50-year retention period for adults convicted of non-qualifying offences with a custodial sentence of five years or more. Then there is a 25-year retention band for adults convicted of non-qualifying offences where there has been no custodial sentence. There is specific provision for under-18s, with retention periods based on whether a first minor offence is applicable. Rather than my talking through every retention band, because there are multiple variations, depending on a range of factors, members can look at those in table 1 in the RaISe briefing paper. What is on the slide is a high-level overview of three of the different retention scenarios.

One of the new departmental amendments relating to retention periods for individuals who have completed restorative justice schemes is relevant here, as it inserts new article 63NA into that Part of the Bill. The Bill as drafted includes restorative justice schemes in another article that also covers diversionary youth conferences. The amendment separates those out and is designed to recognise that the Public Prosecution Service (PPS) can direct the use of restorative justice schemes for adults and under-18s. Under the amendment, they will attract the same retention period as a caution for adults, so 75 years for a qualifying offence or 25 years for a non-qualifying offence and five years for an under-18.

More broadly, the Committee will be aware that a number of recent reviews of the justice system have recommended new statutory provision for restorative justice for over-18s, including the Department's review of sentencing policy. It is possible in future that, if there is further legislative change through the likes of the sentencing Bill, we could see court-ordered restorative justice used more widely in the justice system.

I will talk about the proposed new article 63G in a bit more detail. It provides that, if a person is charged with a qualifying offence but not convicted, the police can retain their biometric material for three years. The process is highlighted on the slides. No application to the Northern Ireland commissioner for the retention of biometric material is required in those circumstances. However, the PSNI can apply to the commissioner for a three-year retention period for individuals arrested but not charged with a qualifying offence and where prescribed circumstances apply. This part of the Bill provides for regulations to be made about the prescribed circumstances that may apply, including the procedure to be followed in relation to any application to the commissioner. The regulations must be laid before and approved by a resolution of the Assembly before coming into operation. A power to extend retention for a further two years in the two scenarios that I just referred to can be found in proposed article 63H where the Chief Constable makes an application to a district judge.

Since the Bill was introduced, the Department has brought forward amendments that are relevant to this Part. One of them adds a new sub-paragraph to proposed article 63G to clarify that material can be retained by police until proceedings on the application to the commissioner have concluded.

There is also an amendment to proposed article 63E that is of relevance. The article currently provides a grace period of 14 days for DNA and fingerprints that are being held for individuals under investigation. That is being increased to 28 days in order to allow the PSNI adequate time at the conclusion of an investigation to delete those from the relevant databases or apply to the biometrics commissioner for continued retention.

That leads on to provisions of the Bill relating to the review of retention of material pending investigations. Biometrics relating to an individual who is subject to an investigation for an offence can be retained until the end of investigation or any criminal proceedings. Proposed article 63T highlights a requirement for the Chief Constable to review the continued retention of material pending the investigation of offences, every five years. That must consider whether an individual remains a suspect in the investigation, or whether the biometric material has evidential value in the investigation or any proceedings. The Department may make regulations specifying further factors that the police must have regard to in conducting a review. Those regulations must be laid before, and approved by a resolution of the Assembly before coming into operation.

The Gaughran and UK case, which I spoke about earlier, highlighted the importance of a review mechanism as an essential safeguard within a biometric retention regime. Proposed article 63U requires the Chief Constable to conduct reviews of the continued retention of long-term retained material where that is held for 25 years, and over. The detailed arrangements around that will be contained in regulations which the Department must provide for, and they must be laid before, and approved by a resolution of, the Assembly before coming into operation. However, that may cover a range of matters, such as when the review should be conducted; enabling the individual concerned the right to request a review; and conferring a right of appeal. Any role for the biometrics commissioner in assessing individual applications also seems to have been left to be defined in regulations.

The Committee has already taken evidence on the Bill from the Northern Ireland Human Rights Commission. It highlighted a range of potential further considerations around the review mechanism that could be defined in the Bill, such as whether the proposed article 63U should set out the time frame for periodic reviews of biometric material; a duty on the Chief Constable to consider the proportionality of the retention of a person's material; and whether further provision for the right to appeal a determination by the Chief Constable can be included in the Bill. Those are issues that are, potentially, worth consideration by the Committee.

I move now to my next slide. I have touched on this already, but the Justice Bill provides that the Department must appoint a commissioner for the retention of biometric material. The commissioner would have a specific role in relation to keeping under review the development of existing and new biometric technologies that might be used by law enforcement authorities for the prevention and detection of crime. There are a range of emerging policing methods that may be of relevance in that area, such as live facial recognition technology, for example. Six police forces in England and Wales have used that to date, but I believe that it has not been deployed by Police Scotland or the PSNI. New developments in other areas, such as voice analytics, gait analysis and AI-driven surveillance technology, are likely to progress significantly in the coming years. It will be necessary to consider the implications of those for any legislation governing biometric data retention.

Earlier, I highlighted that there are different oversight arrangements for biometric data retention in other parts of the UK. We have the Home Office Biometrics and Surveillance Camera Commissioner, albeit the post is currently vacant, and the Scottish Biometrics Commissioner, who you will hear from later. It may be worth exploring how rapid changes to biometric technology are already impacting on existing legal frameworks in other parts of the UK and what we can learn from that to help inform our Justice Bill.

I move now to my next slide. I have already referenced some of the amendments that the Department has proposed to the Justice Bill as it has gone through the process. These next amendments relate to the power to photograph certain persons at a police station. At present, the legislation gives the PSNI the power to take photographs of a person who has been detained in a police station or arrested. However, there is no power providing the PSNI with the ability to require a person to attend a police station at a later stage for a photograph to be taken. These amendments seek to rectify that, where a person is arrested or charged, and provides that one of two conditions must be met: the person has not been photographed in the course of the investigation of the offence by the police, or the photograph is unavailable or inadequate. There appears to be a time limit of six months for police to take the photograph, and there is a similar provision for individuals who are convicted of or given a caution in respect of a recordable offence with a time limit of two years.

We also have another amendment, which gives the police the power to specify a date and time for attendance. People who are arrested and taken to a custody suite will generally have their fingerprints, a DNA sample and a photograph taken straight away, but there might be cases where that is not possible. At present, a person can be required to attend a police station at a particular time but not on a particular day, only any day within a seven-day period. The amendments put photographs on a similar footing to DNA and fingerprints when it comes to the recall power to specify attendance. They also give the PSNI the power to specify a date and time for individuals who have been arrested, charged or convicted to attend a police station for fingerprint samples and photographs to be taken. In practice, that will allow opportunities to take fingerprints, DNA and photographs to be maximised, which will potentially help to detect crimes that an individual may have committed in the past or might commit in the future. However, the Committee may wish to consider getting further detail on how the PSNI will operationalise the power.

I will comment more broadly on custody photographs. When I appeared at the Committee previously, I highlighted the fact that the Justice Bill does not explicitly include custody photographs as biometric data. It currently covers only fingerprints and DNA. Departmental officials who came before the Committee in January highlighted the fact that they have still not reached a view on whether photographs are biometrics and that it is still an evolving issue that requires a bit of further work. Slightly different approaches are taken to custody photos depending on which part of the UK you are in. For example, Scotland's definition of biometric data includes photographs and recordings alongside fingerprints and DNA, but that is not the case in England and Wales. Again, it is something for the Committee to consider exploring further with stakeholders as its scrutiny on the Bill progresses.

The final amendment to Part 1 of the Bill that I will highlight involves a change to the terminology in parts of the existing legislation that relate to biometrics. They change the term "reported" to:

There seems to have been some confusion around the meaning of the term "reported" when it comes to an offence and how that relates to operational procedures across the biometrics provisions. The amendment removes references to "reported" and changes it to reflect that a person being charged with an offence includes where a complaint has been laid against a person. That means that references to a complaint being laid against a person covers a complaint being made that the person has committed or is suspected of committing the offence without having been charged of that offence. That aligns with the Magistrates' Courts (Northern Ireland) Order 1981.

Finally, the Committee will be aware that the Department has said that the biometrics amendments do not represent any significant new policy and that they came about from stress-testing the provisions with PSNI operational colleagues. When it comes to further scrutiny of the biometrics amendments, it may be worth considering any engagement on those that the Department has had with stakeholders, such as the Northern Ireland Human Rights Commission or the Information Commissioner's Office. Further consideration could also be given to whether there has been any progress around providing a projected cost around the biometrics provisions, including any impact that the amendments might have.

You will be pleased to hear that that is the end of my remarks. I am aware that you will hear from an actual expert on all of that in the next session with the Scottish Biometrics Commissioner. I am, of course, happy to try to answer any questions that you might have about that part of the Bill.

The Chairperson (Ms Bunting): Thank you very much. I will open it up to members. As you have heard, I have a few questions here. Actually, I do not have any for you. Having heard that, does anyone have any questions for Judith, or are you saving them all for Dr Plastow in the next session?

Mr Bradley: There is one point on which I want clarification, if possible. It is about being reported for an offence versus being charged with an offence where a complaint has been laid. Will you break that up a wee bit for me? When it comes to DNA and fingerprint retention, what is the difference?

Ms Bailie: At the minute, the terminology of "reported" is used in a number of places in the legislation. There has been some confusion, because that term is used differently in different parts of the system. It can mean different things at different points. It was necessary to clarify that in relation to when biometrics can be taken from an individual. Changing it to "a complaint has been laid" aligns it more with the existing legislation in the Magistrates' Court. That is really just a change to the terminology.

Mr Bradley: It streamlines it so that it —.

Ms Bailie: I think so, yes. There is a bit more detail on that in the written paper. I will see whether I can find the relevant section.

The Chairperson (Ms Bunting): Are they at different stages of the process, Judith? Is it right to say that "reported" essentially refers to when somebody is reported by the police to the PPS, and that the other one is when a complaint is made, which means when a person comes in and says, "Such-and-such did such-and-such"? Is that the distinction?

Ms Bailie: I think that the PSNI indicated that, once the PPS takes the decision to prosecute, a person is deemed to have been informed that they have been reported, and so that change in terminology to "a complaint being laid" against a person means that it is taken a bit earlier in the process. It streamlines it and makes it more —.

The Chairperson (Ms Bunting): It is the point at which somebody is brought in by the police during the course of investigation as opposed to the point at which they have already been charged and reported to the PPS.

Ms Bailie: Yes, that is my understanding of it.

The Chairperson (Ms Bunting): So, it would be part of the investigation, not consequent to the outworkings of it. Does that help you?

Mr Bradley: It is as clear as mud.

Ms Bailie: I appreciate that that is quite a technical point.

Mr McNulty: Thanks, Judith; that is the heavy lifting done when it comes to the detail. Your presentation is very heavy on biometrics in Scotland, England and the rest of the UK. I am interested to know how Brexit changed things with adherence to the ECHR. How do the proposals compare and contrast with existing arrangements on the island of Ireland, including in the South of Ireland?

Ms Bailie: I previously provided a bit of an overview of the system in the Republic of Ireland, so there is a paper on that. If it would be useful, I could provide that to the Committee again. There is legislation in the Republic of Ireland called the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, which governs biometrics in relation to policing there. A number of retention periods for biometrics are set out in that Act. There are specific retention periods for offenders and individuals who are suspected of being guilty of offences as well as specific retention periods for children. There is no commissioner role similar to that which there is in Scotland or England and Wales, but the Republic of Ireland has a DNA database system oversight committee that oversees the management of the system there. That was a bit more about what happens in the Republic of Ireland.

Mr McNulty: How does that align across the islands? Compare and contrast. Would it not be more rational for us to align more closely with the South as opposed to with somewhere separated from us by sea?

Ms Bailie: The retention period for offenders in the Republic of Ireland is indefinite. It has indefinite retention of materials for individuals who have committed offences. At the time that the legislation was passed, the Irish Human Rights and Equality Commission outlined some concerns around that. There are, however, differences in relation to child offenders when it comes to what system we seek to put in place in Northern Ireland. I am not sure that it is for me to comment on which jurisdiction we should be following.

Mr McNulty: That is fair, Judith. I appreciate your answers. Thank you.

The Chairperson (Ms Bunting): On that point, Judith, we are undergoing this process because we have been found to be in breach of the European Court's conventions. The Republic is also in breach of the European Court's conventions if it holds DNA indefinitely.

Ms Bailie: There appears to be a provision in the Republic's legislation that information can be retained indefinitely. I am not sure whether they have plans to make changes to that, but that is the system as it currently exists.

The Chairperson (Ms Bunting): OK. Thank you.

Miss Hargey: Thanks very much, Judith. Following on from Justin's point, the Human Rights Commission raised this issue more in respect of the European directive as a result of the Windsor framework agreement. Has any scoping or work been done on what the commission highlighted with regard to the EU law enforcement directive? Is the framework compatible? Does it comply with that directive? Is there any research that points towards what the directive is? Maybe we can ask the Department to give us clarity on that and on whether it has an assurance that these changes comply with that European directive under the Windsor framework.

Judith, in your presentation, on the review period, particularly on information being held for 25 years or longer, you mentioned factors that the Chief Constable would consider would be left to regulations, as they would in the next period. Does that not leave a gap in the intervening period? We have looked at post-legislative scrutiny where funding has been given as reason why certain regulations in previous legislation have not been brought forward. A lot of stakeholders raised the issues of the right to appeal and the right to review how your data is held. We are going to leave it to regulations, but there is no date in the legislation for when those regulations should be moved. If they were not moved in tandem with the commissioner being set up, would that not leave obvious gaps?

Ms Bailie: I cannot really comment on when the regulations will be moved or commenced. I do not have any further information on that.

Miss Hargey: From memory, there are no commencement dates in the legislation. Is that not correct? It just states that they will be commenced at a future date.

Ms Bailie: I would need to check that.

Miss Hargey: OK. It is an area that we need to pick up on with the Department with regard to any potential gaps that could be created if regulations were not to be moved. That is my concern.

The Chairperson (Ms Bunting): Your report states that England and Wales, under the previous Government, were looking at changing their system and doing away with the post of commissioner. Is that still in the offing? Is there any indication from the Labour Government of what they intend to do?

Ms Bailie: No. I have seen nothing in relation to that. The Data Protection and Digital Information Bill fell just ahead of the general election. There was reference in the King's Speech to another data protection and smart data Bill potentially being brought forward, but there has been no information on what might be included in that or whether proposed changes to the Home Office Biometrics Commissioner will be brought forward again. I do not know. You could ask the Department whether it has had any engagement with the Home Office on that.

The Chairperson (Ms Bunting): We might do that. The other aspect of that was that some of the commissioner's work was going to go to the Investigatory Powers Commissioner's Office. Do we know where the other powers were going to go or what was going to happen to them?

Ms Bailie: I do not have any detail on that.

The Chairperson (Ms Bunting): I just want us to be clear. There are jurisdictions doing away with commissioners and we are about to set one up, so I would like to have some understanding on that.

That is fine, Judith. I can save anything else that I have for the Scottish Biometrics Commissioner. If we have anything else for you, Judith, we will follow it up with you. Do you intend to stay for the next session, so that you can hear from him? There is no pressure, but you are welcome to stay. Judith, that was really helpful. I am sure that we will have more for you as we progress, but thank you for that so far.