Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): To give us an update today, we have Colin Caughey, director of policy, and Claire McCann, senior policy and research officer, both of whom are from the Northern Ireland Human Rights Commission (NIHRC). Folks, thank you so much for taking the time to come to speak to us today. We really appreciate it. The Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) codes of practice are significant and large in number, so we are very glad to have you with us in order to clarify some of your concerns. Representatives from the Department will be in after you. We will hand over to you for an opening statement, and then there will be some questions.

Dr Colin Caughey (Northern Ireland Human Rights Commission): Thank you very much for the opportunity to present today on the revisions to the PACE codes of practice. As you said, I am the director of policy in the Human Rights Commission, and I am joined by Dr Claire McCann, who is a senior policy and research officer in the commission's human rights after Brexit team.

The PACE codes perform the vital roles of providing guidance on the powers afforded to the police to investigate crime whilst clarifying the safeguards necessary to ensure that the rights of individuals under investigation are respected at all times. Those safeguards are particularly vital where an individual is deprived of their liberty or is vulnerable. As the Department has set out, the proposed revisions and new code I are largely generated from three new Acts of the Westminster Parliament. I should say at the outset that, whilst the commission has a statutory role to provide advice for the Westminster Parliament, our advice was not sought during the passage of the three Acts. In contrast, in the development of the revised codes, we are pleased to report that Department of Justice officials reached out to us early in the development process. We were afforded an opportunity to review the proposed revisions prior to consultation, and a number of amendments were made to the revisions in line with our advice. In addition, the Department provided us with some helpful clarifications that addressed some of our points about the revisions. I understand that the Department has set out our suggested revisions, which, as you may have noted, were fairly minor.

We were, in general, content with the revisions and were particularly pleased to note the enhancement of the role of appropriate adults. We raised some queries about the stop-and-search powers in code A. At paragraphs 2.6 and 2.6A, code A makes provision for the search of individuals in organised protest groups. We note that those paragraphs have also been raised by respondents to the consultation exercise. Those powers appear to be appropriately circumscribed, and the guidance notes clearly set out how decisions should be taken. Judicial determinations on legal challenges relating to searches of groups tend to focus on the particular circumstances of the case. To ensure that the powers to search protest groups are exercised in a proportionate and human rights-compliant manner, it is important that assessments by police officers are based on sound evidence and reasoned judgement. The commission continues to engage regularly with the PSNI, and the Chief Constable's continued commitment to human rights provides important reassurance that the decision-making will be appropriately guided to respect human rights.

In paragraph 2.6B of code A, at our request, an additional note was provided to clarify that, when considering whether there are reasonable grounds for suspicion based on behaviour, a police officer should be mindful that neurodiverse individuals can inadvertently exhibit suspicious behaviour.

Under code H, which relates to the detention, treatment and questioning of persons under the Terrorism Act 2000, revisions were made to ensure that persons arrested under section 41 of Act were adequately informed of the reasons for their arrest. Under code I, which relates to the detention, treatment and questioning by police of persons in detention under the National Security Act 2023, revisions were made to ensure that posters advertising the right to legal advice that are displayed in the charging area are provided in English and in the main minority ethnic languages. The Department also clarified that NIHRC staff and the staff of organisations in the National Preventative Mechanism come under the definition of "public officials" who are to be given access to detainees with their consent.

In reviewing the codes, the fundamental role performed by solicitors in advising and assisting individuals held in custody and being interviewed under PACE is evident. In a number of parts, the code refers to the duty solicitor scheme. That scheme performs the important role of ensuring that those held in custody are able to promptly access a solicitor of their choosing. The commission will continue to liaise with the Law Society to ensure that that scheme operates effectively.

The commission also highlighted the need to update how specific EU measures are referred to in the codes in order to take account of the new legal framework post Brexit. We advise that we have identified directive 2010/64/EU on the right to interpretation and translation and directive 2012/13/EU on the right to information in criminal proceedings as falling within the scope of article 2 of the Windsor framework. Therefore, both directives set out the minimum standards below which the law in the Northern Ireland cannot fall. Both those directives are mentioned in PACE codes C, H and I. It is the commission's view that the rights associated with criminal justice are covered by the "Rights, Safeguards and Equality of Opportunity" chapter of the Belfast/Good Friday Agreement, due to the commitment to civil rights and the commitment to the incorporation of the European Convention on Human Rights that sit within that chapter. That appears to be in line with the reasoning of the Court of Appeal in the Dillon judgement. EU law that underpins such rights continues to set the standards that the law in Northern Ireland should not fall below.

We note that the Information Commissioner's Office (ICO) provided a response to the consultation in which it highlighted the amendments that are relevant to its regulatory role. The PACE codes refer to relevant data protection legislation throughout. Committee members will be aware that the EU general data protection regulation (GDPR) and law enforcement directive lay down safeguards for the protection of personal data in the context of law enforcement. The commission considers that EU data protection rules fall within the scope of article 2 of the Windsor framework. UK law currently aligns with EU minimum standards. However, if UK law were to diverge from those rules so as to reduce protections, Northern Ireland law would, in practice, have to continue to align with the minimum standards in EU data protection law to avoid a diminution of rights, which would be contrary to article 2 of the Windsor framework. We welcome the Department's commitment to undertake a review of the data protection impact assessment ahead of publication of the codes. We echo the ICO's call to ensure that both the Department and relevant enforcement agencies ensure that the protection of personal data is built in by design and default when implementing changes to the PACE codes that impact on how personal data is handled and processed.

There are a number of paragraphs in the codes where the language is difficult to interpret and understand without legal assistance. That is largely a consequence of the supporting Acts of Parliament being legally complex. That is not a criticism of the drafters in the Department of Justice, and I am not suggesting the need for any amendments to the proposed code. However, steps could be taken to ensure that the protections in the codes are more accessible and more widely understood. In England and Wales, the Home Office has developed guidance notes on rights and entitlements contained in the relevant codes. It would be helpful if the Department could develop similar guidance notes for the PACE codes for Northern Ireland. Indeed, given the commonality between the codes, the Department could likely utilise the wording in the Home Office guidance. The commission would, of course, be happy to assist the Department with that initiative.

That concludes our opening statement. We are happy to answer any questions that you may have.

The Chairperson (Ms Bunting): Thank you very much, Colin. OK, members. Does anybody have any questions for the Human Rights Commission?

Miss Hargey: Thanks very much, Colin, for coming in today. We received an appendix on some of the concerns on which you have engaged with the Department. We have responses under each concern and area that was raised. Have you had sight of those responses? Do you support all that the Department says? What key issues or concerns about those PACE codes are still outstanding?

Dr Caughey: On what we had raised, the response from the Department helped to clarify some of our concerns and pointed us to elements in the notes that clarified them. I suppose that, with this, there are restrictions to the legislation that the codes are implementing. There are elements where we could see potential refinements to those Acts of Parliament. However, in implementing the codes and what is provided for in the Acts of Parliament, we were broadly content with the Department's response to the queries that we raised and the suggested amendments. Overall, it comes down to the individuals who will actually utilise the code and take those decisions. One thing that we always emphasise is the importance of human rights considerations being built in to thought processes in the police when it comes to exercising their powers that are contained in the PACE codes.

Miss Hargey: Other respondents to the consultation raised concerns. There is the whole emergence of protest groups and how they can be identified. This week alone, we have seen incidents in the South of Ireland involving Mothers Against Genocide, pro-Palestine protests and strip-searches. I know that we have two different jurisdictions, but that concern came up. Have you shared those concerns, particularly around identification of protest groups and enacting some of those powers? Are you satisfied with the departmental response on where some of those powers, particularly those that relate to stop-and-search, children and young people, are enacted? When it comes to some of the powers being exercised with or without a search warrant, depending on the context, are you satisfied with who makes that decision? Is the context laid out in terms of the parameters against which that would be assessed? I still have those queries and do not have answers, so I wonder what your views are on those aspects.

Dr Caughey: On the protest groups and requirements there, there is obviously an issue in that protests impact on the rights of others. Sadly, we have seen recent incidents in Belfast where protests have led to violence. Clearly, there is a need for the police to have powers to search people and address those sorts of protests. The way in which the decision-making is set out in the code seems to us to encourage police officers to consider the rights of individuals and to be wary of the potential for, if you like, net widening or individuals being subject to searches where certain thresholds are not met. There is always the risk that a police officer would not follow the procedures that are in place. In a way, we have to have a bit of trust that what is there in the decision-making will be applied in compliance with human rights and in a way that is considerate of the rights of all. Obviously, in the context of a protest, there is a right to freedom of expression and a right to freedom of assembly and those other considerations. In a way, we take some comfort in knowing the emphasis that the PSNI places on individuals' human rights —.

Miss Hargey: The police have to balance those rights.

Dr Caughey: Yes, in their thought processes. It is almost impossible to write down in a code a situation that will mean that human rights will never be abused. You put in place decision-making frameworks that, you hope, will mitigate the risk of individuals ever overstepping, or you put in place accountability mechanisms to ensure that, when any individual does overstep, it is addressed. With regard to warrants and the general approach to the powers, a lot of this is refining existing powers. We are conscious that there have been legal challenges to the PACE codes, but, when we look at the case law, we see that it tends to be about circumstances when police officers did not follow what was set down in the codes. The revisions proposed herein largely mirror the code as it exists but apply in some different areas. That provides us with some reassurance that the right basis is there.

Miss Hargey: It is about how it corresponds. There are separate issues and ways. On warrants, one concern that came up as part of the consultation was around press freedom. There were concerns about the investigatory powers tribunal judgement on the press. It is about how it corresponds with where they overreach at times and where, potentially, illegal activity takes place by state agencies trying to disrupt press freedom. Do you have concerns coming from the judgement of the tribunal?

My other issue is about CCTV and image recognition and the rights of solicitors and others. It is their job to be in that scenario, but their facial recognition should not be fed into a wider system. Have concerns been raised or come to your attention about the rights of those who support individuals in a legal capacity?

Dr Caughey: We have not had specific concerns raised. With regard to video recordings, where you are capturing the data and the image of someone, in a way, we rely on broader frameworks such as GDPR and even protections provided under the Windsor framework that set in place protections on how data should be stored and when it should and should not be accessed. The information that is gathered through the PACE codes is reliant on the data collection and oversight systems that are in place within the police.

Do you want to add anything, Claire?

Dr Claire McCann (Northern Ireland Human Rights Commission): From our perspective, it is reassuring to see that the ICO has also responded and emphasised that data protection mechanisms are in place and exercised at every level of decision-making and when new codes are being implemented. The safeguards that exist for data protection are there wherever that kind of data is being collected, handled and processed. There are clear safeguards in place for that. I do not think that we would have concerns about them being misused at this point.

Dr Caughey: In relation to press freedom, the commission is always concerned to ensure that people are able to engage in investigative journalism and uncover abuses where they take place. We have not looked in detail at that specific aspect of the tribunal case, but we would be happy to take a look at that judgement. I see that an amendment was brought forward or discussed in the consultation report from the Department. I could come back to you in writing about that tribunal point, if that is OK.

Miss Hargey: OK. Thank you. I would appreciate that.

Mr Bradley: Thanks very much for your presentation. Deirdre touched on one of the things that I was worried about. As somebody who worked on newspapers for 47 years, I have always respected the freedom of the press and its confidentiality. If officers search a building and come across journalistic material — not necessarily with the journalist present but find material of a journalistic nature — how do you deal with that? Is that material part of the evidence or can it be disregarded? What happens and what guidance is given to officers in such a situation?

Dr Caughey: That would depend on whether the information was in relation to the identification of a crime. It might be better to get clarification from the Department on where the parameters are within the code and what is expected of the police.

From a human rights perspective, journalists have press freedom and should be able to carry out their investigative work in their role of gathering information of interest to the public and sharing that information freely.

That overriding goal and purpose and the public service that journalists perform by informing public debate and identifying issues of concern is something that the police should be mindful of when they encounter journalistic material and consider it in the context of any investigation.

Mr Bradley: How does an officer demonstrate a genuine suspicion or reasonable grounds, as mentioned in code A, for stopping an individual suspected of terrorism or a terrorist activity? I am thinking of a debate on the mainland about the situation whereby someone who is seen physically and verbally threatening to kill or maim is not arrested by the police, but someone who is silently praying is arrested by the police on terrorism charges. That is difficult. How does an officer decide the parameters for an arrest in a situation like that?

Dr Caughey: Arrest depends on whether a crime has been committed. Threats to kill individuals are a criminal offence. Making a threat against someone's life would be grounds on which to carry out an arrest. A police officer in those circumstances would be guided by what the criminal law states or does not state.

Mr Bradley: Maybe I am being unfair — that happened on the mainland — but I find it offensive that somebody can be arrested for silently praying but somebody else can threaten a life and be treated in a different way. Anyway. That is all for me, Chair, in the meantime.

Mr Beattie: Thank you for your presentation. You challenged DOJ about ensuring that those who carry out intimate searches and strip-searches are of the same sex as the individual being searched. Indeed, anybody who is present — two others need to be present — needs to be of the same sex. However, although the PSNI's guidance states that requirement of officers, it finishes by saying:

What are your thoughts on that?

Dr Caughey: I have a large file in front of me, Doug, and I cannot pull out the exact paragraph on gender recognition certificates, but, if there is a gender recognition certificate, and if the law states that the gender of an individual should be identified by their gender recognition certificate, it would be in line with the law to recognise that in the code.

Mr Beattie: In other words, for example, a biological male who identifies as a female and has a gender recognition certificate could carry out an intimate search on a female. Does that go against the independent review of data, statistics and research on sex and gender, which tells us that we should not confuse gender with sex in that instance?

Dr Caughey: All I can say on gender recognition certificates is that, if the law places a requirement, as, I understand, it does, that the gender listed on a certificate be the one that is identified for an individual, legally, that is what a public authority would have to go on in identifying the gender of that individual. However, when it comes to such searches and considerations, the interests of the subject of the search — the individual who is being searched — should always be considered. If concerns about an individual were raised on any reasonable ground, one would think that that would be considered to ensure that the search is conducted in a way that respects the dignity and the rights of the individual who is being searched.

Mr Beattie: Yes. I completely agree with your last point. Where I am coming from is that you challenged DOJ on the distinct question of sex — not gender but sex. You asked what sex is allowed to carry out an intimate search, and it said that the sex of the person carrying out the search must be the same as that of the person being searched, but we are now confusing that with gender, so I am slightly confused about that. The last point is absolutely right. We should always pay regard to the person being searched, but we do not always have the ability to do that, and the Police Service or the Prison Service may not always have the ability to do that. I am slightly more confused now in regard to your challenge to DOJ and its answer to you where we were explicit in saying the words "same sex" regarding who carries out the intimate search. It is nothing to do with gender but with same sex. Does that need to be changed if we are going to change how we are looking at this?

Dr Caughey: If you will permit me, I will consult DOJ on that issue because I cannot identify the precise provision at the moment.

The Chairperson (Ms Bunting): When you look at that, will you also look at the rights of officers who are put in that position; for example, female officers being asked to strip-search biological males against their wishes and vice versa? Obviously, there are issues along the lines of self-identification and so on too. I just want to make sure that we are clear on those issues. It seems to me that there are rights issues both ways: that is, rights for the officers also.

Mr Beattie: It is not fair for me to keep pushing and pushing when you have given me a fair answer, but I will just finish by saying that it has left me confused. Somewhere along the line we need to clarify that and make sure that it is explicit in the way that we want people to understand it. Thank you for your answers.

The Chairperson (Ms Bunting): Will you come back to us on that?

Dr Caughey: Yes, we will.

Mr Bradley: What rights does the person being searched have to refuse to be searched by a female who identifies as a male or a male who identifies as a female?

Dr Caughey: There are different contexts in which a search would be conducted. It is difficult to talk in the abstract, but, operationally, I envisage that, if there is an easily resolved way in respect of the officer who conducts the search, that would be considered by the responsible officers. I can consider that as well in our response.

Mr Bradley: I would like to know what rights the person being searched has to refuse to be searched.

Mr Baker: Are you concerned about the lack of child-friendly custody environments in the North?

Dr Caughey: The child friendliness of the justice infrastructure in general is something that we have concerns around and would like to see updated. It is not the best for getting the best possible evidence. There are a number of challenges there where we think that the prison estate could be updated to better support children.

Mr Baker: As regards strip-searching of vulnerable people and of children and young people, what are your concerns around the safeguards?

Dr Caughey: That needs to be closely monitored. The thresholds around when a strip-search of a child should and should not be conducted need to be closely monitored. There needs to be a clear justification for it, and any guidance around how that should be carried out needs to be considered, including its necessity and the appropriateness of how it is conducted and who is present whenever such searches are conducted.

As we said, the role of the appropriate adult seems to be being reinforced in the revisions to the guidance, but the role of an appropriate adult is something that people probably do not quite understand. People probably hope that they will never be an appropriate adult. I have not seen the Netflix drama where the role of the appropriate adult very much comes to the fore. Preparing people for any circumstance in which they may be an appropriate adult and making sure that there is guidance for those who find themselves being in that appropriate adult role is very important so that they are able to support the individual and, importantly, to challenge where they think that something is taking place that should not take place. It is something that we should take away as the next step with the PACE codes revision: supporting those who support those in custody needs to be considered.

Mr Baker: That is what came to my mind when I watched it. It was done in one shot, so it was like being a fly on the wall watching that part of it. It was about the best interests of the child at that particular time. That is what bothered me. Thank you. I appreciate it.

The Chairperson (Ms Bunting): Thank you, Danny.

We have covered a lot of ground on some of this. Section 6.10 makes provision for a solicitor to be removed from an interview.

Dr Caughey: Which code is that one?

The Chairperson (Ms Bunting): Let me see which one we are on.

Dr Caughey: Is it code H?

The Chairperson (Ms Bunting): Yes, it is code H, paragraph 6.10. It is about the provision for a solicitor to be removed from an interview. It says here:

I can understand that, yes, of course, the police need to be able to put questions to a suspect and solicitors should not get in the way of that. However, their removal seems quite extreme. You felt sufficiently concerned to highlight the issue. The Department's response says that it is not a big change and the Law Society will be included amongst the consultees. I wonder how frequently that issue may have arisen in the past — I will put these questions to the Department — and how it is likely to be resolved. What are the rights issues for the person being questioned in circumstances where their legal representation has been removed from the interview? Surely that is likely to have a bearing on any trial that may be pursuant.

Miss Hargey: It is also in code D, in relation to solicitor involvement in identification, where it says that the officer in the process of identification can even refuse the presence of a solicitor. I am concerned about the same issues and want further clarity. Is it an issue that comes up regularly? Why would you need to change it? As you said, it may be for the Department to answer those questions. I am concerned about that point about the legal adviser. What are the parameters for making that decision, and who can make that decision in the police on refusing at interview or in the identification process?

The Chairperson (Ms Bunting): How is it ultimately resolved? A person cannot be left without legal representation.

Dr Caughey: The presumption is that an alternative solicitor, presumably of their choosing, is provided when that particular solicitor who is advising is asked to leave. In our opening statement, we emphasised the point about the duty solicitor scheme, where there is a rota of solicitors who are available to provide advice, and that is very important. Being a small jurisdiction, we do not have in place the same rotas that there are in England or Wales, where it is much more formalised and there are duty solicitors in the holding stations all the time. Ensuring that, should that circumstance emerge, individuals are able to identify an alternative solicitor and one with whom they feel comfortable and with whom they are able to consult before going back into the questioning is a concern.

We raised that because there is that judgement call between a solicitor offering a robust defence for their client and supporting them with the questions and their being obstructive and being asked to leave. Where is the dividing line there? It is a hard thing to put down in the code, but it is important that solicitors are aware that that exists and that they have a clear line as to what is and is not acceptable. What we would not want to have occur is a police officer using that power to remove a solicitor who is perfectly legitimately advising and supporting their client.

The Chairperson (Ms Bunting): Yes. I have never heard of it happening, but it would be interesting to know, because I imagine that there would be a rights issue there. Even if another solicitor is brought in, you have been part way through an interview with one solicitor, who has had a briefing and had their view of what the advice should be, and then you are essentially having to start from scratch with somebody else in the middle of an interview.

PACE issues are not small. That is also an issue. I am glad that there are departmental officials in the room. We can pursue that with them. Will you look at those issues and come back to us, please? That would be really helpful. Thank you.

Dr Caughey: Yes. The role of a solicitor when an individual is in custody is fundamental. There always needs to be a solicitor on record when an individual is being interviewed. Certainly, we will look into those specific provisions in some more detail.

The Chairperson (Ms Bunting): It may be moot to some extent if it is such an infrequent occurrence.

Dr Caughey: We will ask the Law Society about that.

The Chairperson (Ms Bunting): The Department has pointed out that the Law Society will be included in the consultees, so, doubtless, we will hear from it. From a rights perspective and given that there may be an impact from having to change midway through, I am interested in how the dispute is resolved and what rights are invoked. Doubtless, we will hear from the departmental officials on those areas too. Does anybody have anything further for the Human Rights Commission? No. All good?

Miss Hargey: Not at this point.

The Chairperson (Ms Bunting): Colin and Claire, thank you so much. We very much appreciate your time today. We look forward to hearing —. Sorry, Ciara, you have your hand up.

Ms Ferguson: Yes. This question may be for the Department as well. What are your thoughts on code H, which deals with detention and the extension of detention without charge? The Department has referred us to the Home Office, but does the commission have any thoughts on it?

Dr Caughey: There needs to be judicial oversight to authorise the extension of an individual's detention in custody. Those protections are in the parent legislation. We have been engaging on counterterrorism powers at Westminster. We always highlight the need for judicial oversight when an individual is held in custody and for provisions to be put in place to ensure that, if an individual has concerns about their well-being, they are able to consult a solicitor, get access to medical assistance, if that is required, and are fully informed of their rights by their solicitor, if the threshold is met and the individual is detained for a prolonged period of time.

Ms Ferguson: I am sorry; my screen froze, so I missed a good bit of your presentation. In your introduction, you mentioned that you were not consulted, although there is a statutory duty on Westminster to consult. Is that common practice?

Dr Caughey: No. The Westminster Government and the Westminster Parliament can request our advice. Sadly, we are not requested as much by the Westminster Government to provide our advice on legislation or legislation that is progressing through Parliament. When legislation that will apply across the UK is being developed, some of its Northern Ireland specifics may not get as much consideration when that legislation is enacted at Westminster. That is an inevitability of the devolution settlement.

Ms Ferguson: OK. Thank you.

The Chairperson (Ms Bunting): That is it now. [Laughter.]

Thank you so much. It has been really valuable to have you with us today. We look forward to hearing from you on the other issues. Thank you very much for your time today.