Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): We have with us from the Department of Justice Lynne Curran, head of the policing policy and strategy division; and Lisa Boal, head of the Police and Criminal Evidence Act 1984 (PACE) policy and legislation branch. Lynne and Lisa have been with us previously. Ladies, you are very welcome. Thank you very much for taking the time today to work through the PACE codes with us. It is a fairly hefty piece of work, so we are glad to have you in front of us. Hopefully, this will shorten some of the issues for us. I invite you to make your opening statement, and then we will take questions. Is that OK?

Ms Lynne Curran (Department of Justice): Yes, of course. I thank the Committee for the opportunity to provide it with a briefing on the PACE codes. I am the head of the Department's policing policy and strategy division. I have with me my colleague, Lisa Boal, who is the head of the PACE and legislation team. I will be honest and say that Lisa is the real expert in the room today. Most of your questions will be answered by Lisa rather than by me.

You are probably aware that the codes support PACE Northern Ireland by setting out the legal framework and safeguards that police officers must follow when exercising their powers. The primary purpose of the codes is to ensure that police powers are used fairly, lawfully and consistently, balancing law enforcement with individual rights. The Committee is aware that the Department of Justice is preparing revised PACE codes for publication and has completed the public consultation.

The consultation asked for views on the proposed amendments to the codes, rather than feedback on the content of the existing codes. We previously provided the Committee with information on the outcome of the consultation and the draft revised versions of the codes for its consideration. We have since forwarded papers to provide the Committee with more information on the summary of changes and our engagement with the Northern Ireland Human Rights Commission (NIHRC), as well as some more detail on interest/campaign groups.

In our engagement with the Northern Ireland Human Rights Commission, we sought its feedback on the draft codes when we were preparing them for consultation. We also shared early drafts with the commission, which subsequently provided us with its feedback. We considered that feedback and responded to the commission on each of the issues that it raised. That included advising the commission of the amendments that we were making to the draft as a result of its feedback. However, we also provided clarification on other suggestions that were not adopted, which, for example, may have already been in the codes and potentially included the steps that are required to secure legal advice by using the solicitors' rota. We have shared that paper with the Committee.

We found that feedback at that early stage very beneficial, and we had a productive meeting with the Northern Ireland Human Rights Commission on 2 May 2024 to discuss the way forward. As a result of that engagement, the commission concluded that, as all its points had been addressed, it did not consider that a separate response to the public consultation was necessary.

I will now turn to the campaign groups. When we published the drafts for consultation, respondents were asked to give their views on the proposed changes and to provide reasons and evidence to support their answers. Our analysis of the responses considered three main areas: first, what changes people did or did not support; secondly, what arguments respondents were making; and thirdly, what changes they were suggesting. Sixteen individuals had responses that were similar to the consultation questions. Although there were no identifiers, such as a name to indicate an organised interest or campaign group, the responses were sufficiently similar that we decided to treat them as an organised interest or campaign group for our analysis. We have included the points that those respondents made in the consultation report, along with our response to the points that they raised. A summary of those comments has been shared with you for the Committee's information.

You are aware, Chair, and I think that you mentioned this earlier, that the SL1, that is, the draft version of the statutory rule, went to the Justice Committee on 27 February 2025. We hope that today's briefing will enable you to approve the SL1 for an order to bring the PACE codes of practice into operation. Having listened to the feedback from our colleagues from the Human Rights Commission, I know that you may raise issues that we cannot answer today, but we are more than willing to come back to the Committee in writing if that is appropriate. We are also more than happy to continue to engage with our Human Rights Commission and Law Society colleagues and all other interested groups.

The Chairperson (Ms Bunting): That is helpful, thank you.

Ms Curran: I am happy to take questions — well, Lisa is happy to take questions. [Laughter.]

The Chairperson (Ms Bunting): That is great; thank you very much, ladies. I will open the floor for questions now.

Mr Bradley: Time and again, the Committee has discussed concerns about monitoring and data handling. Given the rapid expansion of AI, what measures are or will be in place to make sure that there is no tampering using AI or any other electronic means to distort evidence?

Ms Lisa Boal (Department of Justice): That question would be more appropriately directed to the PSNI. The way that it handles and manages its information in its IT systems is an operational matter. I am sure that the PSNI's data security and frameworks is quite a concern for the Chief Constable. I am not sure whether it is — I do not know — but if AI is used, the police would need to have appropriate procedures in place. The PSNI would be better placed to comment on that.

I am sure that they would want to make sure that, if they were using AI in evidence or whatever, data protection and the appropriate safeguards were suitably protected to safeguard evidence.

Mr Bradley: I will probably take that up through our Policing Board members. Thank you.

Miss Hargey: Thanks very much, Lynne and Lisa. I would like some clarity and maybe more information. As you say, that would be good.

I want to ask about code A and protest and serious violence. It is about competing rights. I get that, on the one hand, the police need to move in in certain circumstances. An emerging issue is face coverings and where there may be reasons for removing them at a protest or counterprotest. It is just the need for that. The report refers to the potential to authorise stop-and-search zones. From your engagement with the police, or in your view, has that power been enacted?

What areas would the police look at to identify a protest group or a group of individuals? Some groups are concerned that the police would use that power to stop protest altogether and the right to protest on certain issues. What additional safeguards will be put in place to ensure that there is no overreach on the right to protest whilst balancing that with protecting the public? Have concerns been raised, and has that power been used? I am not sure how wide it goes.

Ms Boal: Some issues around policing protests can straddle a number of areas in the Department. There are stop-and-search powers under PACE legislation, but some of it falls more under legislation on policing protests in the public order/counterterrorist base, which is not an area that I am overly familiar with. There are issues in that space about face coverings and that type of thing. I am not clear or certain about the legislation on or requirements for that, so I cannot speak fully to that point.

There have been amendments to the PACE codes to strengthen them to make sure that stop-and-search is carried out on the basis of fact and evidence. If there are issues about protest groups and the removal of face coverings, we might need to come back on that in writing. I am not sure about the full breadth of that sphere and where it strands into policing protests and the space that is more on counterterrorism.

Miss Hargey: I am asking more about the protest than the face coverings. We have seen incidents over the past year, and it is about making sure that there is not an overreach, because people have the right to protest.

Ms Boal: Yes.

Miss Hargey: Even if you do not agree with what people are protesting about, they still have that right. Some groups that responded to the consultation raised the issue of sufficient safeguards. What safeguards are in place, and at what level in the PSNI is the call made? It should certainly not be at just district commander level, given the broader public implications one way or the other. I am keen to see what the threshold is. Face coverings are different when a protest is peaceful. I am trying to get an understanding of that balance of rights, where that balance is struck and who makes the decisions.

Ms Boal: The codes set out the safeguards and factor in the fact that the police should take those into account when policing a protest and balancing those competing rights. A lot of it will come down to operational decision-making when the police are setting up a command structure for policing a protest. I think that there are varying levels of authorisation depending on the nature of the incident. The balance that they strike and the issues that they weigh up will be an operational matter for the police. It comes down to operational decision-making and the operational rights that are in the codes. The codes can set out what has to be considered and the rights that have to be protected, but it will come down to decision-making by the police and individual officers and the factors that they weigh up in each situation as it presents.

Ms Curran: I would be quite confident that the police have some sort of guidance on the level of the person who makes those kinds of decisions. That is not something that we will be privy to, because it is an operational issue.

Miss Hargey: Do they have guidance? Could that be confirmed?

Ms Curran: We can ask.

Miss Hargey: Can you check if there is guidance and a procedure that they follow? I understand that, on the day, it is an operational decision. I get that, but the aftermath and the planning before you go into a scenario also have to be considered.

My other question is on code B. I raised it with the Human Rights Commission, so you may have to come back to us. It is about press freedom. One of the concerns that was raised in the consultation report is that some people believe that searches on journalists should be authorised at judge level. Obviously, that comes on the back of the investigatory powers tribunal on press freedom issues and their having been overstepped.

The Human Rights Commission is coming back to us with a written report on that, but I am keen to hear the Department's view on those things as well. Do you see any crossover in, correlation with or concern about the level at which that decision should be taken?

Ms Curran: I am not sure that that is something that we can pass comment on today, to be quite honest with you.

Miss Hargey: No, I do not mean today; I mean that you could follow up on it.

Ms Curran: I am not even sure whether it falls within the remit of the PACE codes. As Lisa said, those set out the process, if you like, or the guidance or the law that have to be utilised, if I can put it that way, but their application is for other people and how they interpret them.

Ms Boal: There is specific provision in the PACE legislation on warrants for journalistic material. Warrants have to be applied for through the courts. The code sets out the appropriate levels of authorisation and the judicial tiers that have to approve each warrant.

The issue around the investigatory powers tribunal, where you are getting into the more covert space, is different and outside our PACE remit.

Ms Curran: If our colleagues in the Human Rights Commission or any other stakeholders have issues on that, we will be happy to engage with them again and talk anything through with them.

Miss Hargey: That is a concern, because some of this feeds off the national security legislation, which is not under the Assembly's jurisdiction. The concern is about the oversight for managing that space of work.

My other question is on code D and anonymity in national security-related cases. Who decides that? Who makes that call? Is that clear in that space?

Ms Boal: The legislation on national security is reserved. It is Home Office legislation. Again, it is for the PSNI's operational decision-making.

Miss Hargey: Does the PSNI determine that it is a national security-related case in how code D is applied to anonymity?

Ms Boal: I am not quite clear what you mean.

Miss Hargey: It says in the code that there is an amendment to exempt officers from giving their names and stuff in national security-related cases, but who determines what case is national security-related and what is not in order for the anonymity to apply? Who makes that call?

Ms Curran: I do not think that I can answer that question today, but I imagine that that would be a conversation between the Chief Constable and the Home Office and whoever else is involved.

Miss Hargey: I am just trying to understand the process.

Ms Curran: Again, that is probably outside our remit here today.

The Chairperson (Ms Bunting): Is it not determined on the basis on which you are arrested? Is it about whether you are arrested under the Terrorism Act (TACT) or under national security provisions?

Ms Boal: It would be a PSNI call. Depending on the nature of the case, it would be able to make a determination.

Miss Hargey: If we could get clarity on that, that would be good.

Ms Curran: Perhaps the Committee could set out what the ask is, and we will do our best to come back to you.

The Chairperson (Ms Bunting): Deirdre, is that you finished?

Miss Hargey: You can move on. I can come back if I need to. I have asked enough for now.

The Chairperson (Ms Bunting): You can go ahead and finish. I do not want to bring Danny in if you are still midway through.

Miss Hargey: I know that you are going to come back to us, but we raised the issue about solicitors being present either at the identification process or at the interview. Any additional information would be good, as that is a concern. Why is there a need to change it? Have there been issues?

The Chairperson (Ms Bunting): This is not a change, though.

Ms Boal: There has not been a change; it has always been there. We have no record of that ever being raised as an issue.

Miss Hargey: OK. What happens, then, if the solicitor is removed?

Ms Boal: Again, that has never been raised as an issue, so I do not know that it has had to be addressed. However, I am sure that a call to remove a solicitor would not be taken lightly, given the rights implications. I cannot say for definite, but if it came to that, I imagine that an effort would be made to have an alternative solicitor in place or an attempt would be made to resolve the situation. That is not something that we have raised. It is not new; it has always been there. The Law Society did not raise it in its consultation response or anything like that.

Miss Hargey: My last point is about recordings and any kind of data or biometrics that are taken. I get that individuals are interviewed, but there is an issue around solicitors' rights. I can see that the police officers may have their backs to the cameras, but have any concerns or issues been raised about recordings in an interview scenario on solicitors and how their rights are protected?

Ms Boal: Not specifically in relation to solicitors. There was a consultation response on appropriate adults being video recorded. From what we were able to determine, however, that was never raised previously as an issue. The PSNI also explained that it is only ever the audio recording of an interview that is passed on in evidence.

Miss Hargey: Are video recordings that are not passed on in evidence retained in any way?

Ms Curran: I do not think that we can answer that question.

Ms Boal: That would be for the PSNI to answer.

Ms Curran: That would be a question for the PSNI.

Miss Hargey: OK. Thank you.

Ms Curran: I am sorry; it sounds like we are being unhelpful.

Miss Hargey: No, no.

Ms Curran: We genuinely do not know the answer.

Miss Hargey: If we can follow that up, that would be appreciated.

Ms Curran: We will try our best.

Miss Hargey: Thank you.

Mr Baker: What safeguards will be put in place for children and young people? When it comes to strip-searches, for example, how are their best interests protected?

Ms Boal: The key point about strip-searches involving children and young people is the requirement for an appropriate adult to be with them. The appropriate adult is there to make sure that they fully understand what is going on, to reassure them and to provide moral support. The codes set out quite clearly the requirement to make sure that people are treated with dignity and respect in a situation where a strip-search is to be carried out. The key protection is the presence of an appropriate adult.

Mr Baker: Could the PACE codes of practice ensure that custody environments are more child friendly?

Ms Boal: The codes would not necessarily be prescriptive about how a particular building should look. That is not necessarily the role of the codes. The police have said that there are difficulties with the police estate. I do not think that any rooms in the police estate are currently adapted for use for children. That would come down to the design of the estate and the resources that the police have to do that.

Mr Baker: OK, thank you.

Ms Ferguson: I want to ask specifically about the new code I. I am conscious that it is quite similar to code H. However, I am also conscious that, in the consultation, those 16 individual respondents, who you grouped together because they were similar, totally rejected code I. What work have you done on that and will you clarify the measures that have been put in place to address the concerns that were raised on that, particularly given that the retention period is up to 28 days? Is that in keeping with human rights? What are your thoughts on that? I would like to be more educated on that.

Ms Boal: In the papers that we provided to the Committee, we set out some of the concerns that were expressed in those responses and how we responded to them. The major issue is that code I is the guidance in relation to the National Security Act 2023, which is Westminster legislation. We did not have any input into, role in or say on that legislation, because it was the Home Office's call to make that legislation and set out things such as retention limits. There was not much that we could do about the policy call on that. Our role is to put out the PACE codes and set out the safeguards and what all should be done. We cannot really do much on that, because Westminster owns the legislation and the codes have to support what is set out in the legislation.

Ms Ferguson: I have a concern. There needs to be an accountability mechanism for any legislation here in the North. Referring me to the Home Office may not be applicable. I would love for the Department and the Committee to be more engaged and involved in that process and to give recommendations. Thank you for that.

Ms Boal: I understand that frustration. Sometimes, that is not in our gift, because Home Office Ministers will proceed as they see fit and do not necessarily engage our Department on matters of national security. They will proceed as they determine and consider appropriate.

Ms Ferguson: Is there any further information, or did you do any work, on the 28 days' detention, given that it is not normal practice?

Ms Boal: Another part of the Department has more of a lead role on the link to national security, but I do not know whether it had any input into that. I am not sure that it did because, obviously, the National Security Act was enacted in 2023, so some of the policy development work might have been done at a time when there was no Minister in place. We did not have any input into it, but I cannot speak for other colleagues. We would need to check that out.

Ms Ferguson: Can you follow that up in the Department? I am concerned, particularly as we may be in breach of article 5 of European Convention on Human Rights (EHCR) and the right to liberty, given that the 28 days' detention period is not normal. If any work has previously been done, it would be really useful to have that. Thank you.

Ms Curran: I am happy to ask that question.

Mr Dunne: Thanks, ladies, for your presentation. In some of the responses to the consultation, there is a wee bit of confusion about the changes in England and Wales, and so on. For my benefit and, I am sure, that of others, can you summarise what the key differences will be between here and England and Wales if those changes come in?

Ms Boal: We generally tend to keep the codes quite consistent with what is in England and Wales because the powers in PACE in Northern Ireland and in England and Wales are broadly similar.

Mr Dunne: Does the term "broadly similar" mean that there is still some difference? I am keen to tap into what the gap is and what the key differences are.

Ms Boal: The only differences would reflect any differences in Northern Ireland legislation or in the Northern Ireland structure or legal system. Substantively, they are quite similar. I cannot really speak off the top of my head to any major differences or great divergence. We follow the PACE codes that are in England and Wales quite closely.

Mr Dunne: What was the last bit?

Ms Boal: We keep the codes quite close to what is in England and Wales.

Mr Dunne: Do you engage closely with your counterparts in the rest of the UK in drafting them and so on?

Ms Boal: Yes.

Mr Dunne: OK. Thanks.

The Chairperson (Ms Bunting): Ladies, when you follow up on Deirdre's query, it would be useful if we could understand the point at which NIHRC raised with you the issue of solicitors being removed. I presume that, if it ever arose, you gave consideration to how it might be addressed. When you respond to us on the issues that we will write to you about, will you include that too, please? It will be important to know that. It is an extreme circumstance — I would be shocked if it ever happened — but, at the point at which it was raised, did the Department think that it was not really an issue? What was the initial response to that? It would be helpful to know that. Thank you.

Before you leave, I want to raise an issue that is kind of indirectly tied to this matter. It is about this issue and the Bill. Later in today's agenda, we have the consultation on the contents of the list of qualifying offences. Obviously, that will tie into PACE and all the rest of it. Something that struck me there was that, in the list of offences — wait till I find it. It is about public order.

The list of qualifying offences includes:

It is clear enough why riotous assembly and affray are qualifying offences. If unlawful assembly is a qualifying offence, it strikes me that people who have their DNA retained will have it retained for 75 years. Essentially, if people gather or a few people walk down a street without an 11/1 notification form, their DNA will be retained for 75 years. A raft of the issues that we have been considering concern whether the retention periods are proportionate. I am asking you this purely because you are in front of me now. I appreciate that you are not part of the Bill team, but you are involved with the Bill. Was consideration given to that? I know that it is just a consultation and that you will work through it, but it strikes me that for people to have their DNA retained for 75 years because they happened to gather or happened not to submit an 11/1 is disproportionate.

Ms Boal: I cannot speak off the top of my head to that offence. I will need to come back to you on that.

The Chairperson (Ms Bunting): I appreciate that I have put you on the spot, Lisa.

Ms Boal: I imagine that it is because a similar offence has been listed as a qualifying offence and that the offence was added to equalise the list and make sure that it is consistent. I imagine that it is because of something like that.

The Chairperson (Ms Bunting): I can understand it for rioting, affray, disorderly behaviour and so on, but public order offences do not always involve violence or bad behaviour, so I am a wee bit concerned about the proportionality. Doubtless, we will return to the matter. I just wanted to check, however, while you are in front of the Committee.

Ms Boal: It is probably because that has been considered as an ancillary offence or an equivalent historical offence, and it has been kept on the list for those reasons.

The Chairperson (Ms Bunting): That is great. There are a number of issues on which you are to come back to us. Is it essential that this stuff be operational by 1 June? Do we have a bit of time? Can we take over Easter to liaise with you further on our queries? What is the time frame?

Ms Boal: Ideally, we would like to progress the codes as quickly as possible, but we are more than happy to take the time to work through any issues that the Committee has. It would be helpful for us if you were to set out in writing your particular queries so that we can make sure that we cover everything and address any specific issues. We will then come back to the Committee in writing.

The Chairperson (Ms Bunting): That is great. Thank you. Are members content with that?

The Chairperson (Ms Bunting): Ladies, thank you very much. We really appreciate it. It was nice to see you again, and doubtless we will see you in the future.