Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): From the Law Society of Northern Ireland, we have Eoghan McKenna and Joe McVeigh, who are both practitioners. Gents, you are very welcome. Thank you very much for taking the time to come here. We appreciate that Peter and Brian were due to be with us, but we understand that there has been a situation. We wish Brian well and a speedy recovery, and we trust that it will be resolved. If you get any updates in the course of the meeting, we would be grateful to hear that everything is OK.

Mr Eoghan McKenna (Law Society of Northern Ireland): Of course. Thank you.

The Chairperson (Ms Bunting): Gents, we received your written paper. The general format is that I will hand over to you for 10 or 15 minutes for any additional remarks that you wish to make. The intention is to work through members' questions in this order: the Bill's Parts, any issues pertaining to amendments, any other issues that you have addressed in your paper or your oral briefing and any general queries that we have. Does that work for you?

Mr McKenna: Yes.

The Chairperson (Ms Bunting): Rather than jump about on subjects, we will try to keep things structured in that way. Is that OK?

Mr Joe McVeigh (Law Society of Northern Ireland): Yes, that is no problem.

The Chairperson (Ms Bunting): Perfect. On that basis, gents, it is over to you.

Mr McVeigh: Madam Chairperson and Committee, thank you for the invite to attend here today. The Bill is vast and very complicated. The person who drafted it had quite a piece of work to do. As you said, you have received a copy of the society's written submission. We intend to provide some initial remarks that centre on the key issues: biometrics, the children's provisions, live links and taxation.

My focus will be on biometrics and the provisions in Part 1. That is a complex and evolving area that directly engages our rights under article 8 of the European Convention on Human Rights, where a balance has to be struck between individual rights and the legitimate aims of the state, particularly in the detection and prevention of crime. In the Bill, biometrics seem to be rather narrowly defined and are limited to fingerprints and DNA. I respectfully submit that that no longer reflects today's technological landscape: biometrics have vastly advanced, with tools such as facial recognition, iris scans and behavioural identifiers, such as gait recognition, already in use by some people in law enforcement in other jurisdictions. The tools that are available will undoubtedly continue to evolve in the years ahead. A broader and more future-proofed definition of biometrics might therefore be needed in the Bill.

Additionally, on the issue of future-proofing the legislation, the provision for the Northern Ireland Commissioner for the Retention of Biometric Material to keep emerging technologies under review is important. However, the commissioner's role needs to be clearly defined, particularly to avoid duplication or overlap with the responsibilities of other bodies, such as the Information Commissioner.

In respect of the proposed new retention model, the society welcomes the move away from the indefinite retention period towards the creation of maximum retention periods. That will help to align Northern Ireland with the standards across neighbouring jurisdictions, as well as with key legal judgements. Those judgements are set out in our written submission, and the Committee will be aware of them. It is necessary to ensure that the new retention model appropriately balances the aim to detect and prevent crime and the right to private and family life; considers the seriousness of offences committed and the need to retain data; provides an opportunity for an individual to challenge the continued retention of their biometrics; and reflects reoffending patterns.

On the proposed amendment to the statutory power of the PSNI to require a person to return to a police station later for a photograph, the proposal to specify an exact time and place may be too rigid and a more flexible time frame may be more practical.

Lastly, it must be recognised that previous attempts to introduce legislation in that area faced delay due to concerns about how reforms might impact on unresolved Troubles-related investigations. It will be important to consider the interlink between provisions in the Bill and legacy cases, particularly in the context of the UK Government's new plans to address the legacy of the past in Northern Ireland.

In summary, the Law Society welcomes the shift away from indefinite biometric retention and emphasises the need for a balanced regime that enables effective law enforcement but not at the cost of fundamental rights.

Unless the Committee wants to address biometrics as a stand-alone issue, I will hand over to Eoghan McKenna so that he can deliver his opening remarks and the rest of our oral evidence.

The Chairperson (Ms Bunting): Yes. We will hear from you, Eoghan, and then we will open up for questions.

Mr McKenna: I will focus my remarks, firstly, on Part 2 of the Bill on the bail and custody arrangements for children. I will then deal with the provisions on live links and taxation. Evidence shows that early contact with the justice system can lead to a revolving-door effect for children, largely due to the complex backgrounds of children who encounter the criminal justice system. Solicitors play a critical role in supporting children through the arrest, bail and custody process by ensuring that they understand their rights, the conditions of their bail and the decisions of the police and the courts. Given the complexity of those proceedings and the vulnerability of many of those children, who often have additional needs, access to legal advice is essential to safeguarding their rights and promoting fair outcomes.

Clauses 4 and 5 introduce new requirements for custody officers, but disparities remain between the powers of the police and those of the courts and have contributed to an overuse of short-term juvenile detentions. That should be further addressed. A key area of concern is that children are frequently remanded due to a lack of suitable accommodation rather than the risk. There is, therefore, an urgent need for suitable short- and longer-term emergency accommodation to ensure that children are not remanded in custody unnecessarily. Bail support services should be expanded and made available to all children, and they should include support for parents and carers. We appreciate that that will require additional resources and investment.

On places of detention, the society welcomes the clarification in law that children should not be detained with adults, the increased maximum age for youth detention centres and the removal of custody care orders for children under the age of 14.

In summary, while we support many of the reforms, it is important that protecting children's rights in the justice system is a top priority and that international best practice and standards are always adhered to for custody and bail arrangements for children.

Turning to Part 3, the Law Society welcomes the inclusion of clauses 20 and 21, which formalise the use of live links for police interviews and extensions of detention. Remote attendance by solicitors and clients has proven to be beneficial and has helped to reduce delays, travel times and waiting times. It is critical that the rights of interviewees and detainees are fully upheld during the use of remote processes. That includes their having access to confidential legal consultation and medical advice while they are in custody. It appears that appropriate safeguards have been put in place to protect the rights of detainees, but it is vital to ensure that there is access to legal advice at all stages of the process and that practice matches the theory. Codes of practice must be updated to reflect the changes made by the Bill and should include an obligation for the documents to be supplied to a representative who is involved in the process via remote means, ensuring that legal representatives are kept informed so that representations can be made before key decisions are taken. There should be further investment in technology to ensure the quality of internet connectivity in custody suites so that interviews are conducted to a satisfactory standard, where all participants are visually identifiable and can be heard clearly, so that they can be understood.

Placing live links on a permanent legislative footing across the courts and tribunals system more broadly is an important and welcome development. Since the COVID pandemic, the benefits of remote hearings for all court users — efficiency, flexibility and improved access — have become clear. Proceedings, including administrative proceedings, remands in criminal courts and case management hearings are well suited to that format. That having been said, in-person arrangements should remain in place for other situations such as fully contested hearings and jury trials, as was previously the norm. The society supports a presumption in favour of using live links in certain cases and would support the expansion of that to other suitable hearings.

The society also welcomes the proposed amendment that would insert a legislative obligation to have regard to guidance issued by the Lady Chief Justice as well as the requirement for the court or tribunal to provide reasons for refusing an application for a direction. Consistency in applying the interests-of-justice test is crucial, as that will help to alleviate inconsistencies in approach across different court tiers and areas that are reported to the society, and will lead to increased uniformity and predictability across the system, which is vital for all concerned. The society fully supports the principle of open justice and agrees that permitting the public to see and hear proceedings through limited transmissions and broadcasts, whenever it is appropriate to do so, can enhance transparency. That must, however, be supported by adequate digital infrastructure in order to prevent disruption, especially in high-profile cases.

Finally, we emphasise the need for continued investment in technology and ongoing consultation with practitioners to ensure fairness, consistency, accessibility and systems resilience.

I will move onto taxation. I will focus my remarks on clause 28, which is of major concern to the society and its members. The clause appears to be an attempt to restrict or remove the role of the taxing master in legal aid cases. That would be a significant departure from current practice. The current process of taxation is transparent, fair and robust. Solicitors provide a detailed, itemised bill that sets out, line by line, the work that they have undertaken and the disbursements that they have incurred. That bill details every step taken in a case, including: all attendances with clients and their witnesses; all correspondence and telephone calls, in and out; the instruction of experts; consultations; and attendances at court. Vouching documentation must be lodged for any disbursements, and court orders that are made. The taxing master carefully scrutinises every element of the bill of costs to ensure that the costs are justified. The taxing master is an independent judicial officeholder who is subject to standards and court rules and is ultimately accountable to the Lady Chief Justice. Restricting or removing that role would reduce judicial oversight and undermine the fairness and independence of the process.

Taxation remains a feature of legal aid systems in other common law jurisdictions such as England and Wales, where costs judges play an important role in maintaining independent oversight. In Scotland, the Auditor of the Court of Session assesses bills for taxation, and, in the Republic of Ireland, the Office of the Legal Costs Adjudicator, formerly known as the Taxing Masters Office, assesses bills of costs. It is questionable that an approach would be taken in this jurisdiction that would create a more restrictive and less transparent approach. It is important to highlight the fact that the current system already has reliable, built-in safeguards. For example, there is a provision to appeal to a High Court judge, and the Legal Services Agency (LSA) has processes in place to flag high-cost cases and liaises regularly with the office of the taxing master. Taxation is included as one of the pillars in the Department of Justice's enabling access to justice reform programme, work on which is at an early stage.

The explanatory and financial memorandum suggests that clause 28 will be commenced on a project-by-project basis, but there is a lack of clarity on when or how that will happen and what those projects may be. We therefore consider the inclusion of that clause to be premature and that it should therefore be removed from the Bill. Legislation should only be brought forward after the correct sequencing has been followed, which is: development of proposals; consultation; and review, with the ability to properly debate and scrutinise provisions.

Legal aid is demand-led, with costs fluctuating depending on the number of cases in the system.

There is no clear evidence that clause 28 would improve accountability or cost predictability. We recommend, therefore, that clause 28 be removed from the Bill.

That concludes our presentation. We are happy to take any questions on any of the areas covered.

The Chairperson (Ms Bunting): Thank you very much, Eoghan and Joe. We will move through this as we discussed if that is all right. Let us start at biometrics. That is you, Joe. You are up.

Mr McVeigh: OK.

Miss Hargey: Thank you for your presentation.

Mr McVeigh: Now, Deirdre, do not be making it technical. [Laughter.]

Miss Hargey: Actually, I am hoping that you will make it technical. I have the same concerns about the narrow scope of the definition of biometric data. We heard from the Scottish Biometrics Commissioner, and even the PSNI itself holds 180,000-odd photographs. What if those were not treated as biometric data? You said that the definition needs to be much broader than fingerprints and DNA. You also talked about facial recognition, and the Lovelace Institute raised concerns about that too. What other areas should be included in the definition, and should there be flexibility in the legislation for new and emerging technology?

Mr McVeigh: The provision for regulations for the commissioner probably gives the opportunity for ongoing flexibility when the Bill becomes law. The Law Society might say that we would prefer to do it correctly first time around and not have to rely on regulations for things that we see coming down the track. The American media reported recently on a victim impact statement from a deceased person that was given in court. That type of technology, which uses AI, is now very cheap, which probably makes it more possible and more attractive to manipulate photographs and videos of people to respond to whatever objective the police might have in investigating crime. Knowing that that technology is now available and is cheap, the legislation should take it into account right away. We have been using voice analysis for a long time in the criminal justice system, so retaining samples of people's voices is an issue. There have to be rules on how those samples are obtained. We have seen, for example, prisoners' phone calls being recorded and used for voice analysis in trials. Think of it this way: post-charge, someone's voice could be harvested by investigators to be used for a voice analysis later on. There need to be strict rules around how that is done. For example, if I am on the phone and someone is listening, I am not the only person on that call. Someone else could be expressing their feelings and talking about their family and children etc, so there need to be rules on how we harvest and retain that type of information. There is an opportunity for the Bill to reflect what is already in practice. Those investigative opportunities are not taken routinely — I am not suggesting that everybody is subjected to that practice — but where it happens, it does so in important cases. How long those samples are retained for is also important.

There is other data. For example, police can recover information from mobile phones. I will not say who the defendant was, but in a case that I had, I had cause to write to the Public Prosecution Service (PPS) to ask for such data to be deleted. The person was acquitted, and, from the hard drive that had been served on us, we could see that intimate photographs had been removed from the phone of that person and his partner. I was told in no uncertain terms that they could not be deleted — none of it. Those photographs had to be held because they had been obtained as evidence as part of a prosecution. So, there is a third party, whose intimate images are still retained by the police and the PPS. Therefore, although we talk about retaining data on a suspect, we do not just retain data on a suspect if we harvest information from their phone. We retain data on every image and every voice message; everything that is on that phone. Those are things that are worth considering when we are talking about biometrics because all of that data could be processed electronically for another purpose. In my respectful submission to the Committee, it is important that we broaden out the protections in that respect

If we do not include protections in this Bill and think, "We can always cover that later in regulations", people will fall into the current lacuna, where they will have no protection. They might get protection at some point in the future, but they will not have those protections now if all the definition only covers DNA and fingerprints, which are, really, 20th-century biometrics. Deirdre, I hope that that goes some way towards answering that question.

Miss Hargey: It feeds into my other point, which is about the safeguards, which you have pointed out, and the review mechanisms. One of the concerns that has been highlighted is that some of the provisions will be in subsequent regulations and not in the Bill. Therefore, you cannot strike a balance or even assess the balance. Do you share the same concern?

On the scope of the role of a Biometrics Commissioner, are there other areas that you feel we should be looking at? The Policing Board's human rights adviser has raised serious concerns about a lack of consultation on issues of privacy — the article 8 rights. We are trying to grapple with the balance between protecting those rights and the state's duty to safeguard the public and deal with crime.

I also want to ask about the Scottish Biometrics Commissioner's office, particularly pertaining to young people and the whole issue of stigmatisation of young people. In Scotland, the data is not retained unless the offence is serious. Does the Law Society have any views on that?

Mr McVeigh: That sounds eminently sensible because you are dealing with young people. As one American politician said:

Therefore, there should be caution, in society generally and among our lawmakers specifically, in how we harvest information about children. I will also make a point that is not in the Law Society's submission. The courts make a particular difference for people who are aged between 18 and 21. The Bill seems to suggest that childhood falls off a cliff at 18, and we know that that is not true. In fact, I can see the criminal justice system evolving to take into account the development of young minds up even to the age of 25. There is an idea that we stop at 18 and that that is when childhood stops, when anyone is rearing someone over the age of 18 knows that it does not. Consideration should be given to treating people up to the age of 21 differently from people who are fully adult.

In fact, we do do that in the criminal justice system. We have a young offender's centre. We do not send 18-year olds to Maghaberry; we treat them differently. There is scope to treat younger people differently.

The Bill does not seem to provide for P, the person, to actively instigate a review. The Chief Constable can review, and I suspect that the regulations will provide for the commissioner to seek a review. However, the person whose data is retained is not able to say, "I would like a review". A good analogy is that if you commit a motoring offence, you can apply for the restoration of your driver's licence. Of course, there are minimum periods when you can do that. You have to see out the statutory minimum disqualification, and you can only go back at the halfway mark. Even at that, there are so many years you have to do before you can apply for the restoration of your driver's licence. When I read the legislation, it struck me that safeguards could be put in place in terms of the provision of powers for the police to investigate crime where P can return after a specified time. It is not straight through the door after 12 months, but coming back after a specified time to say, "I think the circumstances are such that you no longer need to retain my fingerprints, photograph, DNA, voice sample or video clips", or whatever it turns out to be. The responsibility is then on the state to continue to justify the retention, which is where it should firmly lie. It should not be for P to justify why things should not be retained, but they probably would have to do that in the course of an application, practically speaking. The state should always have its feet put to the fire over retaining private, intimate information about a member of the public. The fact that the Bill has no facility to instigate raises concerns about its compliance. I suspect that it will also cause litigation if that is not included, so leaving it out is legislating for litigation.

There is a code of practice in Scotland, and I do not see that in the Bill. That is important. I am a lawyer who has judicially reviewed all the way to the UK Supreme Court on the absence of a code of practice for directed surveillance. Codes of practice are important because they set out the landscape clearly so everyone knows how things are being done. If I am representing someone and I do not know the rules that were applied, and the investigators do not know that there are any rules — in fact, there are not any rules — and are working without rules, it makes it very hard to understand how the law is being applied. It makes it very difficult to advise people about their rights. The code of practice is essential to do it right. Again, that could result in litigation.

The Chairperson (Ms Bunting): I am fairly sure that the Committee has raised the code of practice issue with the Department.

Mr McVeigh: I felt that it was interesting that they had that. On the wider point about serious offences and children in Scotland, the Law Society agrees that it is the correct way forward to achieve proportionality when dealing with children.

Miss Hargey: Thank you very much. That is useful.

Ms Ferguson: To be honest, you have covered all the areas. There is one wee final one. You noted the stipulation to return to the police station to take a photograph, for example, where they are basically going to specify the time and date. You noted that there should be more flexibility. Can you throw some light on the practicalities of it all?

Mr McVeigh: The way that it works at present —. I suspect the way it will work in future —. We are not legislating for relationships between lawyers and the police, so if something is going to be in the legislation, it needs to be there. With regard to the practicalities of people returning, who returns for photographs, DNA or fingerprints to be taken? They tend to be people who voluntarily attended at a police station who were then prosecuted under summons and convicted. They have to return because, if you are charged, your fingerprints, photograph and DNA are taken, so these are people who were convicted on the foot of a summons. Under the legislation, there will also be people who will have had one of these fines that the prosecution can impose. They will not have been to court, so they are people who maybe have to turn up and subject themselves to DNA, fingerprints and photographs being taken.

At the moment, a police officer will often contact us and say, "Your client needs to come in and have their photograph taken" — well, they do not say that yet, but they will say, "Have their fingerprints or DNA taken" — and we will say, "OK, all right. They're on holiday at the minute. Would you maybe suggest when they could come in?" "I'll be on nights this week. Give them my mobile number, and they can give me a call to arrange to take their prints". In other words, there is a huge amount of flexibility that works around people, and why? Because it is an offence not to provide it. No one wants to criminalise someone who has been dealt with by way of a summons for shoplifting or something like that, and they do not want to criminalise them further for not popping in to give their DNA or fingerprints. The police are very practical about that. If we have something that is prescriptive, however, you could end up with people failing to turn up, and a police officer then saying, "It was an offence for you not to turn up to provide that".

The Chairperson (Ms Bunting): In fairness to the Department, I think that that is what it is aiming for, Joe. The Department is saying that a number of police stations are closing, and a number have closed. It is concerned that, if people just rock up without an arrangement, the person who deals with the photos and taking the DNA may not be there, so actually there is potential for the clients also to be inconvenienced. I absolutely see what you are saying, and maybe we need to tie that down further, but the impression that I got from the Department putting that in was to make sure that the flexibility was codified to allow people a chance to come in, that it can be arranged and they are not inconvenienced.

Mr McVeigh: If there is flexibility in the system and it allows for people to make arrangements and for the police and P not to be inconvenienced —. Reflect on the seriousness of the offence. Most people who are dealt with by way of a summons were not charged because that person was not deemed to be someone who needed bail conditions or to be brought before a court within 28 days or overnight. This is someone who, in many respects, the police and the prosecution have taken a relatively light touch with already, so we do not need to be heavy in our touch with them after they are convicted.

The Chairperson (Ms Bunting): Is that everybody's else's recollection of what we heard from the Department?

Ms Ferguson: I do not have that recollection from the Department, to be honest. I thought that it was solely a resource issue, which it should not be when it comes to improving the flexibility. I would love to hear the evidence. If stations are closing and do not have the resources, that is to suit everybody, but I have never heard about there not always having been that flexibility regarding working with a solicitor and an individual and the local police to arrange a convenient time. I would love to know where the evidence is.

Miss Hargey: My interpretation was I thought that it was the police asking for more a specific time. I have a concern that what is in the Bill is too rigid if it is only one time. You do want to leave it so open, and if they are not there, it is a waste of time for the person and the police. Is there the flexibility to not be so rigid with one date and one time, because the consequence of not turning up or not being able to make it —. Maybe we need to do a bit more probing.

The Chairperson (Ms Bunting): We probably do, because I picked up that it was about making this work better so that people are not coming at a time when the person is not available.

Mr McVeigh: Obviously, the provisions mandate that if someone is effectively —. If police have lodged a file with a view to prosecution, it seems that these provisions kick in for, at the very least, the lesser period of time. That will mean that more people have to provide those samples than is currently the case. If you are released with a view to maybe getting a summons later on, you are not required, on every occasion, to come in to provide these samples, practically speaking. As we know, if that is mandated in the Bill, it will become practice. In a sense, to reflect on the need for some provision, there will be a lot of people who will be required to provide these samples.

The Chairperson (Ms Bunting): We need to nail this down, I think.

Mr McVeigh: Yes. The police might come back and say, "We have a lot of people who we need to get samples from. How flexible can we be?" On the ground, this particular provision caught the eye of the Law Society because it creates practical difficulties. These things have a way of creating ill feeling where it does not need to exist and all that sort of stuff.

The Chairperson (Ms Bunting): If it is not broken.

Mr McVeigh: Yes.

Mr Bradley: Thanks very much for your presentation. You have answered most of my queries on biometric data. My worry is that, even now, before you go out that door, what you know today is out of date. My first computer had a three-inch floppy drive, and then there was a five-and-a-quarter-inch floppy drive, then CD and DVD drives and hard drives. When you were putting a new piece of memory in your machine, you figured it out at roughly £5 for every 10 MB. You can now buy a hard drive to store terabytes for a lot less than you could buy storage of, say, 100 MB years ago. Technology evolves very quickly, and it is very hard to keep pace with it.

My concern is that we are now heading down a road where, first, we had number plate recognition, and it is only a step down the line to have facial recognition, behavioural recognition and iris scans, all done remotely through lamp posts, where the wee black boxes are at the minute. We are going into dangerous territory, and, even without a biometrics commissioner, there is no comeback. Who deals with the cut-off point? Who deals with when you start deleting? Is it the PSNI, the Policing Board, the Information Commissioner's Office (ICO) or the DOJ? There is nowhere for a victim to get his data deleted. It is getting so bad now that even the data of people who have not been convicted remains on the system. If they are young, that could affect them going for a job in later life and so on. I have grave concerns, and I am keen to hear how you feel that emerging IT and AI can be future-proofed through the Bill.

Mr McVeigh: One of the things about future-proofing AI is that this artificial intelligence is a hell of a lot more intelligent than we are. That is also why some sort of human restriction needs to be put in place. Legislating for the implications of AI seems to be a problem that has been wrangled by every single legislator and even every single dictator on planet earth. In China, the use of facial recognition is ubiquitous, it seems. It seems to me that, the minute that you legislate for it, you will be out of date. Therefore, what needs to be constantly reviewed is how legislatures approach the behaviour of not just the state, to widen it out beyond this Bill, but private companies. If you walk into certain shopping centres in Belfast city centre, there is a notice on the door saying that they are using facial recognition. Effectively, the shopping centre is saying, "We have put a notice up. If you walk in, you have consented", and that should not be the case. In my respectful submission, it should not be the case that you consent, by going to buy a pair of trousers, to someone harvesting your data to run through a database to see if you have been a shoplifter in the past. I agree with you, Maurice, that we need to reflect on how people's data is obtained and retained in the context of the high-velocity transformation of IT. Maurice, you are quite the fancy guy that you had all those computers. It took me a while to get my first computer, Maurice, but you seem to have been way ahead of the game.

Mr Bradley: I can remember the internet coming in. [Laughter.]

Mr McVeigh: I hope that that answers your question. Caution is required, but do not be too prescriptive when the regulations are provided. Leave flexibility, and maybe the commissioner can consider it, either by amending regulations or bringing stuff back to the legislature in the annual report and saying that things need to be done. Initially, the term restriction on the commissioner seems unrealistic when we consider that the Information Commissioner has five years. We have two years, with a two-year renewal, so a maximum of four years. If one considers that whoever becomes the commissioner has to bed in new policies and procedures, learn on the job, and face evolving technology, it seems that there might not be enough time to get consistent decision-making.

Mr Bradley: I have one question. It is all right to have the checks and balances in place, but somebody needs to be trained to do the job, and that is going to be very difficult.

Mr McVeigh: I agree with you, because it is very difficult to stay on top of IT and evolving technology. That requires someone to assist the commissioner and, frankly, the Chief Constable in making decisions on how they retain, how long they retain information and to what use the information is put. The commissioner is designed to have powers across the board on those issues. The Law Society expects the commissioner to be properly resourced to employ the correct staff at the correct level to assist them in making the decisions.

Mr Bradley: Just one thing, while I have it in my pocket. I lost photographs from that wee card. It says 32 GB on the card, so I put it into a programme on my computer in the office and did a recovery. I got 180 GB of photographs from a 32 GB card. Is your information ever erased? I do not think that it is.

Mr McVeigh: We advise clients that it is never erased. When a client's computers and phones are seized, we tell them not to work in their police interview on the basis that they deleted material from their device. You work on the basis that it will be recovered.

The Chairperson (Ms Bunting): Just one second, Ciara, and I will bring you back in. Also, I am conscious of the time, because it is 3.10 pm and we still have many other sections to get through. Everybody needs to be a bit more circumspect about their questions and answers.

Joe, by way of reassurance, the initial appointment may not exceed four years, and the commissioner may not be appointed for more than two terms, so the maximum permitted length of appointment will be eight years.

Mr McVeigh: Eight years. Thank you for the correction.

The Chairperson (Ms Bunting): Presumably that is still less than the Information Commissioner.

You can come back in, quickly, Ciara, and then I will move on.

Ms Ferguson: I will come in quickly on the commissioner's role and the Chief Constable's role in the review of retention. I am thinking of the practicalities for you as solicitors and stuff. There is a need for guidance that clearly sets out their roles and responsibilities. You believe that that is required. What would the impact be on your role in supporting individuals if that were not included?

Mr McVeigh: That is a good question. I had not reflected on that, Ciara. This legislation is going to bring in an additional aspect upon which we have to advise our clients. When a client is interviewed by police, these rules kick in. It was not necessarily always that way. When we say that they kick in, that means that they may kick in for the rest of their natural life. There is no clear, published guidance that we know the Chief Constable is going to work within and that we can therefore give advice about. It is a fairly impenetrable piece of legislation when it comes to this issue, so the guidance needs to be published in such a way that the public can also understand it clearly, because people who would never have believed that their information would be captured for five years, never mind 75 years, are going to be affected.

I checked the life expectancy of someone who is born in Northern Ireland between 2021 and 2023. It is 78·8 years for males and 82·5 years for females. It is significant that the retention periods are broken down into 75 years, 50 years and 25 years, with there being no ability for P to instigate a review. If a 10-year-old were to be convicted of a serious offence, their data could be retained until they were 85 — that, by the way, is with an application for an extension, if needed. That concerns the Law Society. There is a provision in the legislation for five-yearly reviews by the Chief Constable, but that means that it is the Chief Constable instigating it.

The Chairperson (Ms Bunting): Yes, that is for applications.

Mr McVeigh: Yes, they have to put the person on notice, but it still creates concerns about civil liberties.

The Chairperson (Ms Bunting): The Jamie Bulger case is always in my mind.

Mr McVeigh: Yes.

The Chairperson (Ms Bunting): I am conscious of time, so everybody needs to be as succinct as possible.

Mr McNulty: Thanks very much for your presentation, folks. I hope that your colleague is OK.

It is a fascinating realm of discussion; we could talk about it all day long. I am massively concerned about the digital data retention piece. It is very important that we interrogate it from a criminal justice perspective, but I am concerned that there is a different rule for the commercial world, and I would like to get your perspective on that. Our web history, digital data and location services are being used by the commercial world, social media companies and Google in order to mine our data and make a lot of money. We do not know where our data is going. More responsibility is being brought to bear in the criminal justice system through your work. How do you juxtapose those two realities? What are your thoughts on that?

The Chairperson (Ms Bunting): Can you bring it back to the Bill, Justin? How does your question relate to the Bill?

Mr McNulty: Biometrics. What are biometrics? What qualifies as a biometric? Is it all about your digital data and your digital footprint, be that your location services, web history or, as you mentioned, the digital data that is stored in your phone? How is that managed across society and across sectors?

Mr McVeigh: My previous answer on that point set out where the Law Society feels the Bill should go. Clearly, there are already issues that are not in the Bill that one could positively argue, without fear of being corrected, constitute biometric information. It may also be about leaving the regulations in place in order to help to evolve what is regulated. Inevitably, going forward, the police will have to look to capture all sorts of information that we cannot even think of today.

Mr McNulty: It is a fascinating realm, folks. We could talk about it all day. Thanks very much, guys.

The Chairperson (Ms Bunting): Thanks, Justin.

I have five questions, but they are all straightforward. Do you consider the proposed time frames to be proportionate?

Mr McVeigh: No. They capture the entire lifespan of a human being. I know that another piece of work is being done on the age of criminal responsibility. However, the age of criminal responsibility is 10. I will repeat the fact that that envisages people not being able to instigate a challenge — or a review; let us not even use the word "challenge" — of the need to hold the data until they are 85, with the possibility of extensions. The Chief Constable can instigate reviews every five years or so, and I think that the same provisions are in place in Scotland, but a person —.

The Chairperson (Ms Bunting): Yes, you are concerned about the individual's right to review.

Mr McVeigh: Yes, that is right.

The Chairperson (Ms Bunting): I am concerned about the Police and Criminal Evidence Act 1984 (PACE) codes. This is going to have significant implications for the PACE codes. I am interested in a specific issue around peaceful protest, which appears to be in the same category as affray, riotous behaviour and so on. In those circumstance, a person's DNA can be retained. So someone could attend a peaceful protest or a vigil, such as that which we saw held for Sarah Everard, and their DNA data could be retained for 75 years.

Mr McVeigh: That is right.

The Chairperson (Ms Bunting): In your view, in such circumstances, should peaceful protest be included in that same public order section requiring retention for 75 years?

Mr McVeigh: First, that is a fundamental right. Long before the Human Rights Act, we had the right to peaceful protest. When I was at university, that was one of what were called our "civil liberties", and that remains the case. The difficulty for this jurisdiction is that people probably exercise that right more here than they do anywhere else on these islands. That is a positive, not a negative. People should be able to protest if they have an issue. They should be able to go and protest outside the offices of the NIO, for example, which we see happen in Belfast routinely. As an example, we recently saw acquittals in Belfast Crown Court where people were out walking with others. In truth, given that we live in a jurisdiction where people exercise the right to go out and protest publicly, and do so peacefully, we should be very careful about putting that in a category whereby your data could end up being retained for the rest of your life.

The Chairperson (Ms Bunting): That is my concern. Unlawful assembly is not the same as affray and riotous behaviour, yet it is in the same category and carries the same implications.

Mr McVeigh: I agree that it is disproportionate.

The Chairperson (Ms Bunting): Does anything else about the PACE codes and proportionality of retention periods cause the Law Society concern?

Mr McVeigh: I cannot think of anything off the top of my head from the information that we gathered to put our presentation together. Off plan, however, I am more than happy to have a look if there are any specific concerns and to come back to the Committee in writing.

The Chairperson (Ms Bunting): That would help us to understand how it will impact on the PACE codes. The Human Rights Commission has been concerned, as have other stakeholders, that the retention periods are proportionate. We live in a free society; this is not China or North Korea. We are trying to find the right balance, and it would be helpful to have that information.

Another issue that has arisen is the retention periods that relate to disposals, fines, notices and cautions. The Committee is unclear about the offences that will result in a person's DNA being taken. Can you give a practical example?

Mr McVeigh: Frankly, I was surprised to see that data retention is instigated when a prosecutor does not bring a case to court. A fine suggests that an offence is non-serious and does not need to be brought before the court to mark its seriousness. The types of rules that are considered can often militate against someone taking a fine in those circumstances. The difficulty when advising anyone in those circumstances is that, even if they fight the case and win it, their data is still retained for a period of time under this legislation. Therefore, the default position baked into the legislation is that, if you are reported for an offence, your data will be retained for a period of time.

The only way it is conceived that it will not be retained is if you are unlawfully arrested or if it is a case of mistaken identity. People can be innocent — totally innocent — for other reasons. There have been many occasions when people have been prosecuted and evidence that was withheld by a complainant or the investigators would have shown that the defendant was innocent — for example, CCTV that places the person at a different place — and they could not have committed the offence because they did not have the opportunity. Therefore, the legislation conceives that the person's data will be retained, despite their complete innocence. Your question raises that concern in my mind.

The Chairperson (Ms Bunting): That is the three-year issue. We have not been able to establish the types of disposals, such as fines, notices and cautions, when the DNA would be taken. What are the types of offence?

Mr McVeigh: Eoghan, can you come in, if I am wrong? Maybe I am a lawyer whose clients never get those simple outcomes. In the past, the list in the Magistrates' Court in Belfast was populated by public order offences, such as assaults on the police, disorderly behaviour and resisting the police. Those offences have fallen massively — I am sure you have the statistics — because of the community resolution notices and the diversions that the police can utilise to stop the courts being populated with what might be described as low-level but visible offences that need to be dealt with. Those offences are diverted away from the court to save money and court time, and that seems to work well.

The Chairperson (Ms Bunting): Will DNA, photographs or fingerprints be taken for those offences?

Mr McVeigh: No. I have never had a client who was treated in that way, after having been stopped by police in the street for guldering or being disruptive. I have never had a client in such circumstances called back to the station because the police need their DNA, fingerprints or photograph. Since those methods commenced, that has not happened to my clients. I hope that explains the point. The legislation provides for that to happen.

Mr McKenna: It is something to be cautious about, because, in the courts, you can frequently obtain a fine for a driving offence, but the courts have a complicated crossover in that the criminal court sometimes deals with civil matters. Somebody who is up for having no TV licence could go into the Magistrates' Court and come out with a fine. That is worthy of further investigation.

The Chairperson (Ms Bunting): That is something that we need to look at and see what the drill is with it.

A couple of things remain for me. You cited the case of a personally instigated request for review and suggested that that could take place after a certain period. Do you also envisage, in those circumstances, that there would be a limited number of requests in a time period to avoid vexatious and repeated requests?

Mr McVeigh: That is a good point, practically speaking. When I was considering this, I thought about that. How often can someone ask for their fingerprints or DNA to be removed from the database? The police could be inundated. Think about the Freedom of Information Act 2000 and how there was an initial explosion of applications, and steps had to be taken to come back from the good intentions of the Act. I agree with the basis of the question, which is that there need to be rules about how often you can come back and in what period unless there are exceptional reasons. There might turn out to be exceptional reasons in an intervening period that make you come back, but, yes, I agree. The practical part of my brain suggests that. I imagine that the Chief Constable would have to assent, and there would need to be an appeals process as well. Otherwise, the district judge's court would be populated by all those applications and would become unwieldy.

The Chairperson (Ms Bunting): This is the last question from me before we move on to other subjects. This is in your paper, under the heading, 'Power to extend the retention period'. In the first paragraph under that section, you say:

Can I check? Obviously, there are circumstances where legal aid is means-tested and others where you get legal aid regardless, particularly in domestic abuse cases.

Mr McKenna: And PACE.

The Chairperson (Ms Bunting): Yes. Do you envisage legal aid for everybody regardless or a means test?

Mr McVeigh: When the Law Society included criminal legal aid in it, it conceived of applying the Widgery criteria, which we apply in applications for criminal legal aid to a district judge. Therefore, the district judge who would hear the application would make the decision whether the person was entitled to legal representation paid for through legal aid. Applying the Widgery criteria is important because they include things like implications for your ability to work, standing in society and reputation. It also allows for your need for an interpreter, for example. It will not just be English-speaking people who will make the applications. Applications will be made by people for whom English is not their first language. The Widgery criteria seem to capture that.

In addition to that, there is always a means test involved. It is called a "statement of means application" for a reason. Therefore, the judge can apply the statement of means, their income and resources, to the Widgery principles and make a judicial decision as to whether a person should receive that assistance.

It seems sensible as well because this emanates from the criminal justice system. It is not an accident that it goes before a district judge who deals with criminal matters. For all those reasons we made that suggestion.

The Chairperson (Ms Bunting): OK. That is fair enough. Thank you. Have members anything else, or can we move on? OK.

We move on to children's bail and custody.

Mr Baker: Thank you, all. With regard to the police being afforded broader powers to detain children through the courts, do clauses 4 and 5 address that, or is more clarity needed?

Mr McKenna: I have found the preparation for today and listening to everyone strange in that, as a solicitor, you are so used to dealing with what is happening on the ground that you almost get lost in that world and are concerned about your clients. Solicitors act for victims, witnesses, suspects and defendants, so we see nearly everyone who is involved in the system, try to help them and try to help the system. Today, I have had to rewind to a time in my life when I studied politics and constitutional law. It has brought me back to why it is important to have that separation of powers and to look at things before they come in, which is, obviously, an important job of the Committee and many here.

In my personal view, what happens in reality is crucial, but we need to protect our armoury and a person's — in these circumstances, a child's — armoury to protect their position. That is significant, because, if somebody's rights are not protected and they are wrongly detained, with regard to natural justice or just common sense, you need to look back at the law. If we take a case to court on judicial review, habeas corpus or whatever, bring a bail application in front of a judge or make representations in front of a custody sergeant, we need the law to be as protective of the child as possible.

Without doubt, any new legislation has to be as strong in protecting the child's rights, but, in reality — this is where it becomes more depressing — whatever the legislation says, the situation on the ground is depressing, particularly for children who do not have a family member to go home to and looked-after children. That is the reality, but, of course, that should not distract from trying to make the best effort at the legislation.

Strong protections for children are crucial. I did not realise it, but, in one of the years that we got figures for, 5% of the people who were arrested were children. I remember looking at that before. As Joe mentioned, there are so many diversions, so that is not even the full extent of children's involvement in the criminal justice system. One of my saddest days in the police station or youth court is when there is a child with no address. They have to go to Woodlands for the night before they appear in court or, even worse than that, when they appear in court and are granted bail, they still go to Woodlands because social services will not provide an address or have struggled to find an address. In my mind, there could never be enough protections for a child in that situation. Children should not be detained, unless it is a last resort.

Mr Baker: Is what is being proposed enough, particularly around the broader powers for the police that you highlighted? Are they covered in clauses 4 and 5?

Mr McKenna: In theory, yes, but they should be supplemented as best as possible with resourcing. It is amazing how many children do not ask for a solicitor in the police station. That is because, although it is the right of the detained person, in practice, police do not really encourage people to have a legal representative.

The Chairperson (Ms Bunting): Does the appropriate adult not do that?

Mr McKenna: Again, it is different, if it is a looked-after child. There is an appropriate adult scheme that is different from social services. Sometimes, the appropriate adult will be a family member. They could be an appropriate adult from the scheme or a social worker. Some of the social workers can be more proactive in encouraging the child and saying, "Don't you think you should get a solicitor?", but there is no continuity or certainty in that.

The Chairperson (Ms Bunting): Sorry, Eoghan, I am just trying to work that through. Every person under 18 who is taken in for police interview should have an appropriate adult with them: is that right?

Mr McKenna: If they will be interviewed, processed or charged, yes, they will have an appropriate adult present.

The Chairperson (Ms Bunting): But not all appropriate adults suggest to them that they should have legal representation. It is inconsistent.

Mr McKenna: I would, sadly, say that not even a majority of appropriate adults would suggest that.

The Chairperson (Ms Bunting): Sorry, Danny. I just wanted to understand that.

Mr McKenna: The Youth Justice Agency had a bail support scheme when something went to court. It is still there but is not focused on as much as it once was. Maybe it has become part of the system and has been accepted as one of its roles, but there was very much a flagged effort to avoid people being detained at Woodlands. I am not sure whether there is anything that could be fortified in relation to that. It is already in law that social services have to find a place for a child, if there is no alternative, and there are cases on that. It happens.

There are figures for how many people, pre-court and post-court, go to Woodlands. I am sure you have had an opportunity to see those. The figures are minimal for people — I should not say "people"; they are children — who end up being sentenced. Often, those who end up in Woodlands are not sentenced. Sadly, your hands will be tied to an extent, because that will flow into the system, and it will then be a case of whether social services, the police and solicitors can do their best to make sure to build on what is in the legislation.

Mr Baker: That brings me to my next point. You hear about that — the revolving-door effect, the complexities, the risk behaviour of young people, children with additional needs and the important role that solicitors play in that. Is there anything in the Bill that can strengthen that role for solicitors and mitigate the revolving-door effect?

Mr McKenna: There has, for some time, been a significant focus on restorative justice: diversion and desistance. On a positive note, that approach seems to be moving towards the adult criminal justice system, where there seem to be efforts to learn from some of the positives in the children's system. However, it is difficult to see what could be supplemented, apart from, perhaps, if it were taken to the codes of practice, which are important on the ground. We made the point about that being where the real impact will be and that it is a vehicle to ensure that positive impact. There should, therefore, be amendments to the codes of practice in tandem with new legislation. That is where everyone could help most.

Mr Baker: I have one more question, and it is a biggie. This is not in the Bill, but it would fit with the Bill: criminal age of responsibility. My oldest boy is aged 10. If his mummy did not lay everything out for him, he would not get out the door, never mind him being held to account for —.

Mr McVeigh: My wife would say the same about me.

Mr Baker: I suppose I get the same as well. [Laughter.]

What is your view on the minimum age of criminal responsibility? We have heard different evidence for ages 14 and 16 as well.

Mr McKenna: In its submission, the Law Society settled at the point of 14 or older. When we were researching the submission, we found that there were dramatic viewpoints both ways. I went to a children's home relatively recently for a case involving a young boy who was a matter of days beyond his tenth birthday. I found that very sad. I begged the police officer, "Look, really? Whatever has happened, I understand that we have to do an interview, but I am not entirely sure that I agree with you that we needed an interview". At least it was not carried out in a police station. I was able to go there so that he was a little more comfortable.

The debate on the age being 10, 14 or 16 is difficult. The Chair made the point about horrific cases that stand out. The Law Society's official position is that the age should be 14, with some consideration being given to whether offences are alleged in a zone between the ages of 10 and 14. That is a challenging circle for anybody to square.

Mr Baker: I know it is. That is a critical discussion as well. Given that we have the Bill, it could be a missed opportunity, if we do not get that into it. I do not know whether you share that view.

Mr McKenna: It is about the order in which it is done. Without doubt, the sooner that is looked at, the better. The Law Society would welcome that nettle being grasped as soon as possible, but at least there are some age distinctions in the Bill.

The Chairperson (Ms Bunting): It looks to me from the framework of the Bill that it is being established at 14, but there is no political agreement on that in the Executive and probably not in the Committee. We can all see the pros and cons.

Mr Baker: That is me finished. Thank you.

The Chairperson (Ms Bunting): Deirdre, did you want in?

Miss Hargey: I seek a point of clarity on something that you said, Eoghan. There is nearly a belief that children or anybody in the system has access to legal representation, but are you saying that, in the majority of cases where a child is in a custody environment, that is not explained to them? Is there no agreed text that is read out to children, no matter who they are, to say, "You have a right to legal representation"?

Mr McKenna: There is, effectively, a tick-box exercise for everyone who is arrested or subject to a voluntary interview, in which case there are lesser safeguards. Everyone is given the same suggested rights. There have been several meetings over the years, and I have always tried to argue that there should be something more for children. There should be more active and proactive encouragement.

Miss Hargey: So that it is understood as well.

Mr McKenna: Absolutely. In fairness, there has been a change, in that not only appropriate adults but, more surprising, police officers and custody sergeants have been in contact, saying, "This person was wavering", particularly in the case of a child. They have said that they would really like to see the child with a solicitor. That has been a healthy development.

It is difficult to talk about cases, but, even recently, I noticed a change when I had a conversation with a custody sergeant. Normally, there is a debate if there is no address for bail, and I have often found that there is a defeatist attitude with the police, which is, "Well, what else can we do?". However, recently, a custody sergeant said, "I am tempted to release this child without charge on report to the Public Prosecution Service for a summons or a diversion or a letter of no prosecution, and I am going to keep the child in the police station as a place of safety until social services come here and find them somewhere appropriate". I was so impressed by that. I thought that it was a healthy balance to try to improve the situation for the child.

The Chairperson (Ms Bunting): There may be circumstances where we can flag that up with our Policing Board colleagues to ask them to take action on that when a child is in such circumstances. We do not have a remit over the police beyond their budget, but that is what the Policing Board is for. We all have colleagues on that board. It seems that the custody sergeants now have a bit more nous about how to deal with the practical aspects and to do the right thing in human terms.

Mr McVeigh: Joanne, may I say that I received correspondence this week from someone who was subject to investigation by Trading Standards, and they wrote to that person, which I thought was good policy, and told them that they were entitled to bring a solicitor. Obviously, they were being interviewed under caution, as everybody tends to be, but bringing a solicitor with you does not imply that you are guilty. To young minds, it may seem that asking for a solicitor might imply that they are guilty and therefore there is a reluctance. Also, if the child is a cared-for child, they may have issues with adults; they may have certain things going on in the background in respect of vulnerabilities in their life that may make them suspicious of strange adults. Something could be inserted to actively suggest to the child that it is in their best interests and does not imply that they are guilty. If Trading Standards can do that for someone, the police could do it.

The Chairperson (Ms Bunting): That is certainly something that we will take up with colleagues on the board.

Ms Ferguson: On the bail support that is offered to children, you noted that it is critical that bail support should be offered to the adults who will look after the children. Can you throw some light on that? What support currently exists, if any?

Mr McKenna: We are trying to be open on that in respect of carers, parents and other siblings who often have to step in. Again, that is more at the court stage because, when a child is in the police station, the appropriate adult will be in the mix, and there will be other family members ringing in, if they are not the appropriate adult. It is the Youth Justice Agency (YJA) really that tries to tie it all together, if the solicitor cannot, particularly with children. The solicitor will try to put in place an infrastructure or support network for an easy, soft landing as best as possible from an arrest situation.

The police have welfare training in place, and they do try their best, in my experience. However, parents and carers are pulled in more by the Youth Justice Agency at the court stage. The bail supports are limited for the pre-court stage at the police station.

The Chairperson (Ms Bunting): Does anybody else have a comment on child bail and custody?

I have two issues. We previously raised the issue around seeking clarification of whether refusal of bail on the grounds of public order referred to the child's engagement in public order or whether it was about public order in the community who did not want the child released on bail.

We have now determined that it is both. I would like to hear your views on that from the defence perspective. If you have a right to bail, you have a right to bail, it seems to me — it is not for the mob to determine — but that is just my view.

Mr McKenna: A slightly separate, practical approach is taken to public order situations, depending on the temperature in the community, the nature of which can vary. In situations over the past number of years, you could see the police, including custody sergeants, take a harder line with children, particularly at the stage of disposal, which is where you normally hear, "This should be referred to the Youth Justice Agency".

Some of the public order stuff rarely goes to the youth engagement officer in the police; it is more likely to go via the Public Prosecution Service or the Youth Justice Agency. There is a more pro-charge approach, even to children, if there is a public order element, which is where you see, in particular, geographical restrictions — do not go to a certain area — restrictions on associating with certain individuals or even curfews, depending on the time of the disorder. All that is, again, part of the debate on the Bill.

The custody sergeant has slightly fewer bail powers than a court. For children, again, that is perhaps not as significant as it is for adults: for example, an electronic tag cannot be imposed with a curfew. The theory is the same, but, in practice, absolutely, a harder line is taken with children and others on public order matters. It depends on the context, such as the time of year or other factors.

The Chairperson (Ms Bunting): We are conscious that children should not be in custody when they have been granted bail but that, sometimes, there is no place for them. We are aware of the issues that social services have in trying to find placements, and we have been made aware of the fact that, more often than not, when children are placed somewhere, simple things can result in the police being called and a breach of bail, which would not necessarily happen if they were at home. We get all that.

Eoghan, your point takes me to my next question, which is on conditions. The Bill implies that there should be no conditions except in certain circumstances. What is the Law Society's view on that?

Mr McKenna: The way in which you always balance that is in terms of reasonableness and proportionality. If it were to come down to a debate between going to Woodlands or out on bail, most children would accept that it would be better to go out on bail, even if they think that the bail terms are unreasonable or disproportionate. Bail reform is a wider issue, and that is being looked at. It is about trying to choreograph all the powers that are there. There was a debate in England about bail terms and things such as release under investigation. With children, you should always avoid the arrest in the first place. As frequently as possible, there should instead be a voluntary interview — the PACE 10 approach — or, even better, a notebook interview.

In an arrest situation, however, the fewer conditions there are for children, the better. It is a bit like the ASBO debate: sometimes, putting in place bail terms or an ASBO encourages a revolving-door involvement in the criminal justice system. I have acted for many children who did not end up being convicted of anything but got themselves arrested five, six, seven or 10 times for breaches of bail. It goes back to the necessity of there being an opportunity for a solicitor to make representations and for bail terms to be varied if there are developments.

It is all about reasonableness and proportionality. Maybe there are some circumstances in which there should be no bail except for being told that you have to appear in court at some stage. In the youth justice system, you invariably see a child signing a bail for £50, whereas it will be £250 or £500 in the adult courts.

There are certainly situations where no substantive bail terms would work. There are cases, however, where bail terms will allow somebody to maintain their liberty. You cannot take away bail terms for children.

The Chairperson (Ms Bunting): That is what I am trying to draw out. When you started to speak, you made a point that highlighted everything for me. You are starting from the practical position and trying to work back. Before you came in, I said that the Committee needs to start at that position and work forward in order to understand the issue. This is what the text is, but how does that work in practice? That is what I am trying to understand.

It seems to me that, without question, there will be occasions when bail conditions are helpful and necessary, yet the Bill says that you must not impose bail conditions. I am trying to strike a balance. Is it fine for practitioners to say that there should be no conditions, or should there be a degree of flexibility beyond that the child will not surrender to custody?

Mr McKenna: Again, that is where the codes of practice come in to an extent. The necessity of the arrest is part of the debate, but any subsequent release on bail should be based on the necessity for those bail terms. There will always be cases that will be on a thin line as to whether the individual is to be charged and detained or released. There certainly should be something there to allow for bail terms.

The Chairperson (Ms Bunting): I ask you guys these questions because it is seldom that we have people in front of us who are at the coalface. We talk about the minimum age of criminal responsibility (MACR) and we think about 10-year-olds, but what about 17-year-olds? It is not straightforward, and I want the Committee to fully understand what the implications are of all of this for that massive spectrum from those aged 10 to those on the cusp of 18. We need to understand what it means, what it looks like and what the good and bad sides are.

Mr McVeigh: There may be a case for taking a graduated approach related to the age of the child. We all see the news every summer when kids are not at school. They turn up at flashpoints and interfaces, and we end up with public order issues. Anybody who grew up in a working-class area in Belfast in the 1970s and 1980s knows how easy it is for a child to end up even on the periphery of such an incident. Nowadays, they are captured by PSNI CCTV, and, two days later, they get a knock on the door because they were present somewhere in the area. If that is a 10-, 11-, 12-, 13- or 14-year-old child, the bail conditions that may be imposed in those circumstances, of whatever nature, ignore the fact that that is a child with a very immature mind who has to rely on guidance from parents. In all of this, there is nothing in the Bill that places a responsibility on the parents. It is not that I necessarily want that to be the case, because a lot of parents struggle themselves.

Where a child comes from a background where there is social deprivation and lack of opportunity, over the summer, there can be the excitement of public disorder on their doorstep. As someone who has personal experience of that scenario as a child, I empathise very much with that child. I understand why that child feels that there is nothing particularly wrong with what they are doing: they are aged 10, 11 or 12, and something exciting is happening at their front door.

The law needs to reflect on the immaturity of a child and on whether a child needs, for example, to suddenly live somewhere else. For a lot of those children, it is happening in their street. Custody sergeants might say, "They cannot go back there, because that is a flashpoint", but they might not have an alternative address. The custody sergeant might say, "They cannot go back there for their own safety, because their neighbours are not happy". Those considerations are difficult, but I go back to what Eoghan said at the start about trying to tread the path through legislation: if there is a doubt in your mind about the need for it, there is no necessity for it, and you may have to legislate in favour of the child. I understand that that may not apply to 16- and 17-year-olds, who may, due to their age, present as more of a risk to public order and to police officers, who often take the brunt of public disorder etc, but a graduated approach may be worth considering. I am not suggesting what that graduated approach should be — it is too difficult a conversation for today — but it might be something that people could put their heads together on and think about.

The Chairperson (Ms Bunting): That is helpful. Thank you. Does anybody else have anything on that section? No?

Does anybody have anything on live links?

Ms Ferguson: I have one question. Can you throw further light on the quality of the internet connection in the custody suite? What is the scale of that problem at the minute?

Mr McKenna: That has been frustrating, given that, obviously, everybody had to react so dramatically to COVID on so many fronts. What was admirable, I thought, was that, while other areas in the justice system had to, effectively, pause or defer everything, the criminal justice system still had to deal with the people who were in the prisons and the people who were still being arrested, albeit numbers were down at the initial stages. Police interviews were still taking place, and the courts, even in the criminal justice system, had to get back into action quickly. Ultimately, after a number of weeks of disruption, the technology was swiftly embraced by the courts. However, in the police station, trying to get access to a detained person in order to advise them and keep the process moving was still very frustrating. In fairness, the police and the Law Society had many meetings where we tried to work out more ways to share information remotely via secure email, and certain improvements were put in place for that. There are also handsets in the police stations and custody suites. We were able to access our clients for advice — not always in a confidential setting, which had its obvious drawbacks, but we worked with everyone as best we could.

When you attended an interview remotely, you were reliant on an iPad at the police station, because, strangely, in police interviews, there were screens in quite a lot of the interview rooms, but those are more for the showing of CCTV footage to a suspect during an interview. Also, a lot of the police interview rooms are recorded so that other officers can watch what is going on in an interview. However, we were not permitted access to those systems to hardwire — if that is, in any way, the correct technical term — into our clients or interviews, so, very quickly, everyone had to get iPads into the police stations. Then, unfortunately, because of the way in which the stations were built, it was hard to get a signal. That has endured despite our having more and more meetings. We have asked the police to adapt their practices to allow for more remote access to advice, be it at the client pre-interview, post interview or during the interview. That has been challenging, so that is why we put a focus on that.

The Chairperson (Ms Bunting): I raised a similar point at a meeting on Tuesday. I understand that old interviews were conducted through Skype, which no longer exists, so the police have now moved to FaceTime, which is all well and good if you are an Apple user, but there is no mechanism for those who are trying to dial in on Android. Therefore, those practitioners have to go in person. Sometimes, the offence can be sufficiently grave that they have to go in person anyway, but people should not lose their right to legal representation purely because their practitioner does not use Apple.

I have had a conversation with the police about it and said, "You need to look at this, because people need access to their lawyers. You have all the technology; this should not be an Apple/FaceTime issue".

Mr McKenna: It has been strange to deal with that over the past number of years, because everyone had to pivot. Everyone has tried to learn the lessons from COVID, particularly the good innovations that were forced on everyone, but that position has been frustrating, along with some issues with prisons. In that context, for whatever reason, the police have been slow to let outsiders have access to their technology.

Mr McVeigh: The other thing is this: if you have a client who is subject to a judicial application for an extension, you cannot, even on your own device, access the legislation or case law that you will need in order to argue it. You literally have to get up, leave the police station and go somewhere to print off hard copies. That is far from ideal: it delays a person's detention, potentially leaves the judge waiting around and delays the judicial decision. There is a lack of infrastructure to allow a solicitor to securely access the internet in order to access what are, nowadays, the basics in order to move or defend an application for an extension, for example. That applies under not just PACE but County Court extensions under terrorist legislation.

One might say that it is even more grave that a person has no immediate access to the internet in order to prepare their legal submissions to the judge. There is a strong argument for readily available, secure internet access in police stations for members of the legal profession. Given that the infrastructure for access to the internet etc is already in place in police stations, I would say, not having costed it and not being an expert in the area, that it would not impact heavily on the police budget to ensure that that is available in custody suites. Remember that we make applications for extensions in custody suites as well. For example, there is a room in the Antrim serious crime suite that doubles as a courtroom with a link to the High Court. Such things are doable; they are just not being done.

The Chairperson (Ms Bunting): Right. I have one more question on live links. If an officer who is in a different station dials in to conduct an interview, does the person who sits with "P" in the custody suite need to be another police officer, or can they be a civilian staff member?

Mr McKenna: In practice, it will probably be a custody detention officer (CDO). The CDOs would, I imagine, be pulled into the legislation on that. There is an issue about blurring lines, in that the CDOs need to be careful.

The Chairperson (Ms Bunting): The Bill refers to an "officer", so I want to check: does it need to be a police officer, or would a CDO do?

Mr McKenna: The better position would be for it to be a police officer rather than a CDO, because the CDO job with detained persons is difficult. If somebody were then associated with the investigation, that might cause difficulties evidentially. If something was said, will that CDO become a witness in court? Will they have to give a statement? That would surely defeat the purpose of having an officer elsewhere conduct the interview, albeit they may want to show some exhibits or something of that nature from a different location.

Mr McVeigh: The CDO is, in essence, a deputy of the custody sergeant. The custody sergeant has a number of functions, as we know, an important one being the welfare of the detained person. In addition, they have to be an independent decision maker, meaning independent of the investigating team. When you start to introduce the custody detention officer into a policing role — effectively, part of the investigation team — they will be playing the role of the second officer. At the minute, two officers sit in at police interviews. In many respects, one tends to be a witness to the other, which is why, when we get to court, we tend not to call both to give evidence. My respectful submission to the Committee is that having a CDO as part of the investigation would undermine the important role of the custody staff.

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

Let us move on to Part 4, which is administration of justice.

Ms Ferguson: You gave us a brief and your opinion on clause 28. What would be the impact of the role of taxing master progressing in the North, making here out of line with the rest of the UK and the Twenty-Six? Also, will you throw some light on the role? Given that enabling access to justice is at an early stage and we do not know what that involves, you cannot provide much detail or give an opinion on what the Department is proposing. What would the impact be, however, if that were to go forward?

Mr McKenna: It goes back to the point about the separation of powers. At present, there is a judicial figure who is a safeguard for the justice system. There is an obvious balance in that: there is someone who is independent, rather than the legal aid authorities funding and then ultimately assessing a case. The taxation debate is delicate for a variety of reasons. In the solicitor world recently, a new practice indicated that the break-even rate for a solicitor's office needed to be increased. Solicitors employ a lot of people, have offices in local communities and are very much connected to those communities via their employees and their clients and through obtaining services from local people. We have significant costs to keep our businesses going, and taxation monitors and reviews those and the break-even hourly rate: that is without profit even in the mix.

Re the taxation element of the Bill, it seems strange on common-sense grounds to do everything in that order. Why have a clause that effectively removes legal aid taxation, where required, without looking at the total picture? Recently, we engaged collaboratively, as we do, with the Department of Justice on, for example, High Court bails, because that was one of the elements of taxation reform that were being looked at in a certain order.

The Department thought that High Court bail was somewhere that it could start to look at taxation reform. We had a lot of information about the average cost of a case that had gone to taxation. The solicitors had detailed, as they must in every case, all the work that they did, and the Department was able to obtain that. There is then an existing composite fee for a High Court bail, which is £180. We made representations that that was inadequate for the amount of work that we do. Whenever you put that on the table and show all the work that we did, there is then the opportunity to have a mature debate in a collaborative fashion, which is, "Actually, if £180 isn't correct to reflect the work that is required to help that person and if the taxation process shows the amount of work that's required, can we then work a system that has a new composite fee, perhaps with, in some exceptional cases, an escape provision for cases that are particularly challenging, making a composite fee too inflexible?" In a situation such as that, you could see how taxation could come out of the picture. That, to me, looks like the more common-sense approach to it, rather than, in effect, loading the dice: removing taxation from the legal aid cases and then worrying about what replaces it down the line. That is a stand-alone point, obviously, and the benefits of a judicial figure looking at that should not be underestimated.

I know from dealing with such cases that the process is onerous for solicitors. Historically, there was a rate that was not reflective rate of the cost of running a practice, the amount of work that we had to do or the processes around taxation. There are certainly areas for improvement to help everybody and help the system, and I am sure that the Law Society and solicitors will engage with that, but the order outlined in the Bill does not seem appropriate.

Ms Ferguson: Thank you.

The Chairperson (Ms Bunting): Does anybody else have anything to ask about taxation?

Mr McNulty: Who is driving the agenda of removing the taxing master and to what end?

Mr McKenna: It certainly was not introduced by the Law Society or the solicitors. We hear many complaints from solicitors about the taxation process: the cost, delays and the strain on cash flow for a variety of reasons. The Department of Justice introduced it, and I had better not try to answer for it.

Mr McNulty: Thank you.

Miss Hargey: A few of us are concerned about that. The Minister has said that it is about managing public funds, but I am keen to understand a bit more about the separation of powers, because it appears to be almost a power grab back into the Department. With that independence or oversight, obviously, public funds have to be managed in the most prudent way, addressing the issues of access to justice that we are all concerned about. Could you go into a bit more detail about why the separation of power is so critical? Also, in the work that you talked about earlier -- the programme for access to justice -- do you still envisage that the outcome of that will be that the taxation role needs to be separate?

Mr McKenna: Even in a situation where there was an agreed approach to a new remuneration arrangement — for High Court bails, for example, which is the one that is more on the horizon — I would like to maintain taxation somewhere in that system, albeit I can see how a new system would work better for everyone if it was more limited than what we currently encounter. At our meetings with the Department, it applauded the solicitors in the taxation process for, for whatever reasons, having mined that data. The Department always comes back to us and says, "There was so much information in that documentation about what you did to help your client".

On the specific point, we value the taxing master. Solicitors have a strange relationship with the legal aid authorities, in that everything is very much branded around access to justice. There have been debates about the rule of law recently. Access to justice is an important part of that, but I imagine that, on the ground, most solicitors have a view that the legal aid authorities do not always help to ensure access to justice. Instead of a culture of granting people certificates to help them to express their legal rights or protect themselves, the starting point is to say no or, worse than that, even when they know that it is a yes, they put hurdles in place to make it more difficult to get to the yes. I appreciate the other side of this, which is that taxpayers' money is valuable and any money spent by taxpayers/the Government/the Department should demonstrate value for money. However, in the taxation debate and more generally, solicitors provide unbelievable value for money in what they do under the legal aid systems.

Miss Hargey: Has the value-for-money issue come up in the discussions that you are having? That has been what is reflected at times.

Mr McKenna: In fairness, it has. There is a common ground on that. In our discussions with the Department, we always take the view that we need to do a certain amount of work to help or protect a client, and we will do that in the most value-for-money way that there is. There is no dispute about that: we are on the same page as the Department on that.

There is normally more of a dispute about what the endgame is of those discussions, because, obviously, any Department or Government will try to curtail the spend within reason.

The point is made that legal aid is difficult to predict, in that it is reflective of certain needs in society, and it is also reactive to what the police do in the criminal justice setting and to what cases arise. As a society, we, even individual solicitors, are aware of the need to protect the legal aid fund and the expenditure. In our discussions, we have said, "Whatever the available funds are, please spend them in the right way to ensure value for money and to help us to do our job", which has been difficult over the years. I think that the Committee had an opportunity to see the Hook Tangaza report on that front. It showed just how strained solicitors' practices often are.
.

Miss Hargey: Thank you for that.

The Chairperson (Ms Bunting): I have some stuff on taxation, if that is all right, gents. What we have gleaned from listening to the Department is that the problem seems to be a bit more with the Bar, in that it struggles, as do we, with the transparency around brief fees. That seems to be an issue, and we have been in conversation with the Bar about it. It highlighted some concerns about equality of arms on the basis that those afforded legal aid would be subject to departmental assessment of costs and value for money on a case-by-case basis, which is of concern to me when it comes to the consistency of approach. There would be an inequality of arms, then, for those who are not afforded legal aid and finance their case themselves or privately. On the awarding of costs, the Bar expressed concern about an inequality of arms in the sense that people on the legal aid side of the house would be subject to a very different assessment, because the people who go private would still be subject to the taxing master. Do you have views on that?

Mr McKenna: There already, sadly, is a two-tier justice system in any event, because the legal aid system, on some fronts, is inadequate and has been for a long time. This certainly would compound that reality, because, depending on the parties in an action, there would be a further pressure point on the vulnerable that, if they do not have that protection in a legal aid certificate, it would be taxed by an independent taxing master. It would perhaps go into the Department, effectively, because it would be assessed by the legal aid authorities. Undoubtedly, there is an equality of arms point in that.

The Chairperson (Ms Bunting): Thank you. I will stay with the administration of justice. Will you look at page 11 of your document? I have two questions. First, on the no bill issue, the Law Society states:

What does that mean in layman's terms?

My second question relates to the next point in your paper, which is about the statutory charges register. In a previous submission to us, you highlighted your concern about where a property is jointly owned and the implications of what is in the Bill for that situation. Will you elaborate on both points, please?

Mr McKenna: Some of the other discussions today were similar to those about the area of direct transfer, in that it is about trying to future-proof anything that is happening. There already has been an amount of committal reform, and there is a suggestion that there will be a dramatic move to direct transfer. Committal reform has taken away the ability to call witnesses at the stage where a case is transferred from the Magistrates' Court to the Crown Court, but a suspect or a defendant can, at that stage, make representations at least. Sometimes, those representations are important for the first stage of a Crown Court case, which could be the no bill application, and that is even before the arraignment of guilty or not guilty takes place. We were anxious to make sure that, if there was a gap being filled, there were still rights for a defendant and that they would not be prejudiced by a new process that we did not know the dynamics of. Again, that is perhaps difficult to speculate about now, because I know that the police and the Public Prosecution Service are desperately trying to get ready for direct transfer in case there is more pressure because of cases moving more quickly and more efficiently, but we did not want this to be caught up in that new era in a detrimental way.

The Chairperson (Ms Bunting): I am not sure that I have fully got this, Eoghan. Could you go over it? Could you talk me through the process?

Mr McKenna: The current process? I suppose that we are speculating because of the direct transfer.

The Chairperson (Ms Bunting): Talk me through what is proposed, how it would work in practice and what you are worried about. I am not picking it up fully yet.

Mr McKenna: At the moment, at Crown Court stage, if you lodge a no bill application, one of the first questions that will be asked is this: did you challenge this at the committal? Obviously, if it goes into direct transfer, there might not be an issue, because you will not have had that opportunity. We just wanted that factored in to any change in the area of no bill applications. Other cases that have arisen about no bill applications more recently have had significant implications, but we wanted to flag it because we were worried about the full picture —

The Chairperson (Ms Bunting): That process point being lost.

Mr McKenna: — on direct transfer not being clear.

Mr McVeigh: The benefit of committal proceedings was highlighted in that recent unlawful assembly case. One of the participants successfully challenged the charges and was not returned for trial. Think about that: that is one less person in the dock and one less team of lawyers in the Crown Court arguing against an inherently weak case. Therefore, whilst most cases are properly presented by the prosecution and are returned for trial, the right of an accused person to have their papers scrutinised, the case scrutinised, legal representations made and the prosecution case challenged at the Magistrates' Court is important: it prevents people ending up in the Crown Court system when they really should not be there.

The backlog in our Crown Court is already enormous. The court is inundated with cases, and we do not have enough judges or enough courtrooms, so, if you can whittle down the number of cases in the Crown Court, you will save money, time and other resources. Instead of having a three-defendant case, you can end up with a two-defendant case, and a two-defendant case will run more quickly than a three-defendant case. It is as simple as that.

There are good reasons for maintaining the committal process. It maintains a level of judicial scrutiny of the process. At the end of the day, judicial scrutiny, whether it is at first appearance, of whether the police correctly charged someone overnight or of whether there is evidence for those charges should be maintained. There is judicial scrutiny of issues about opposing bail. Maintaining that judicial scrutiny all the way through the process is one of the priceless aspects of our system.

The Chairperson (Ms Bunting): The issue of committal reform has been going on for a long time.

Mr McVeigh: Yes, it has.

The Chairperson (Ms Bunting): To some extent, has that ship sailed, Joe?

Mr McVeigh: Well, direct transfer takes away an opportunity for argument on the papers, and you might say that that is one of the civil liberties in the system that is worth maintaining.

The Chairperson (Ms Bunting): Presumably, committal reform was undertaken in order to save money and time.

Mr McVeigh: Yes.

The Chairperson (Ms Bunting): That was part of the rationale for it, yet you are saying that, actually, it was a fundamental component of saving money and time, because it meant that people could be pulled out of the system.

Mr McVeigh: That is right. People might ask, "How much money are you saving?", but that is because committal has been whittled away over the course of my career. Preliminary investigations or mixed committals, where a mixture of evidence and papers is examined, have been whittled away over the years. If we go back to basics, in my respectful submission to the Committee, no one should be before the Crown Court having to make a no bill application.

The Chairperson (Ms Bunting): OK.

Mr McVeigh: If it is inherently weak, why are we making no bill applications? That may be overly simplistic, but it is worth considering.

The Chairperson (Ms Bunting): This no bill thing is very specific to the death of a child or a vulnerable adult.

Mr McVeigh: Yes, that is right. The Law Society has seen the merit of the proposal in that respect.

The Chairperson (Ms Bunting): Moving on, the issue of statutory charges is addressed at page 11 of your submission.

Mr McKenna: Again, that was, to an extent, fear of the dark. Guidance will be issued in due course on how that will be managed by the legal aid authorities. We just wanted to ensure that, if there had been issues, perhaps in a family case where there was joint property, there was some ability to reflect that or to protect other individuals who may not have received a legal aid certificate.

The Chairperson (Ms Bunting): Thank you. Does anybody else have anything on Part 4? No.

We will move quickly to the amendments.

Gents, you have been gracious with your time, and your answers have been really helpful, in that they take us into the practical arena, where we do not go often.

Does anyone have any questions on serious organised crime? Restorative justice? Rehabilitation of offenders? Access NI filtering? No.

Repeal of vagrancy? Connie?

Ms Egan: Thank you. I really appreciate the comments in your paper on the repeal of vagrancy. The Committee has not heard as much about that as other issues, and I am really interested in it. I wanted to hear a bit more from you about that. In your paper, you put forward the view that:

What is appropriate and would work well, if the vagrancy laws are repealed?

Mr McVeigh: First, a soft touch by the police around the specific vagrancy offences that are on the books and are used by the police. When people are living on the street, they are inherently vulnerable and poor. In my respectful submission, why we are criminalising poverty and vulnerability is beyond me. The Vagrancy (Ireland) Act 1847 was introduced in the middle of the famine to criminalise poverty. It was an ugly scene to see people starving on the side of the road and begging for food and alms. In fact, if you look at Hansard for the discussion of that legislation, you will see that all of the Irish MPs at Westminster begged the Westminster Government not to enact it. They said that it was a characteristic of this society that we provided alms to the poor, yet it got on to the books and has never left.

Our police can apply discretion. They can look at the conduct of someone who is being disorderly or using theft to feed themselves. There are ways of utilising the legislation that we have had for an extremely long time to deal with any problems that come from a person who is homeless. In my respectful submission, the fact that anybody is begging is a disgrace on our society. No one should have to beg. There will always be people who beg, but they do not have to be brought before Belfast Magistrates' Court or wherever.

Eventually, because they beg so much, a magistrate or a district judge, with a really heavy heart, may give them one week in custody. That achieves nothing. It rehabilitates no one. It does not get a person a house or get them off drugs.

Vagrancy is not just a criminal justice system issue; it crosses a number of Departments. In my respectful submission, with regard to criminalising poverty, I will be glad to see the back of that legislation.

Ms Egan: I totally agree. We should not criminalise social deprivation and poverty. That is really helpful context. I was not aware of the context in which it was brought in, so thank you for that. I just want to confirm that you do not foresee any unintended consequences from repealing the vagrancy legislation.

Mr McVeigh: I would prefer there to be intended consequences, so that, when we repeal the legislation, there are alternatives for the police and civic society to deal with it. My office is on Queen Street, and you have only to walk down Castle Street to see the failure of local government to deal with what is happening in our city centre. That is not a failure of the people who are living on the street. It is not their failure; it is a failure of people involved in government and their provision of assistance.

Mr McKenna: The Law Society is trying to provide reassurance there. Aside from the vulnerability of individuals who would be involved ordinarily, one may take it to a different level and look at the worst-case scenario of somebody who is acting inappropriately. In that scenario, the police may feel that their only option is to look at a begging charge, but there are many other options for the police, such as disorderly behaviour. Even a common assault, which sounds dramatic, does not involve any physical contact. If a person feels that they have been a victim of somebody who was begging on the street, there are many options to address that without holding on to that legislation.

Ms Egan: That is really helpful. Thank you.

Mr Dunne: Thank you, gentlemen, for your detailed presentation. It is widely recognised that a multifaceted approach is often the best solution to dealing with vagrancy. Nobody wants to beg on the streets, and, unfortunately, some people who are in that scenario are victims of human trafficking and so on. Would repealing that legislation remove the tools with which to, ultimately, deal with a criminal element further up the food chain, perhaps ringleaders of human trafficking? It is often the people who are out on the front line who are the biggest victims of that.

Mr McVeigh: Foreign nationals, for example, beg in Belfast city centre. Is it the implication of your question that they are part of organised begging? I have no evidence of that.

The Chairperson (Ms Bunting): Coerced begging.

Mr McVeigh: Coerced begging. For clarity, is that your concern?

Mr Dunne: I imagine that that is the case in various parts of the country.

Mr McVeigh: We have other legislation that deals with people being coerced. Anybody who is standing on the street having been coerced into begging is a victim. Arresting that person for begging does not acknowledge or recognise their victimhood in the same way as we do for sex workers. Under the principle that we now apply, sex workers are the victims of the people who use them. We criminalise the people who use sex workers, not the sex workers themselves.

The Chairperson (Ms Bunting): In theory.

Mr McVeigh: In theory: that is right. In my respectful submission, it would be helpful to look at it from a different perspective, which is that people who are begging on the street, in circumstances in which they have been coerced or are part of an organised money-raising exercise, should be treated as the victims of the people further up the food chain. The police have powers to go after the people further up the food chain. Seeking the cooperation of the victims is of greater assistance than criminalising them, and that has happened with sex workers. There are sex workers, though not in large numbers, who have cooperated with police in order to —

The Chairperson (Ms Bunting): We do not think that it is that straightforward. Of course, none of us wants to see people who are homeless or in poverty being criminalised. Of course, we do not want people to be criminalised for begging and seeking help. However, if the offence is done away with, first, will council by-laws be enough? Secondly, if the police do not attend — they will not, if no crime has been committed — and that person is a victim, that person will fall through the gaps, because nobody will come to see them, and they will not have the chance to say to an authority figure, "Help me. I am in trouble here". Do you know what I mean? There will be no opportunity for that. It is the police who make the referral, but, if the police will not come, where will we be? The police have said, "Yes, we will come", but we all know that there are resourcing pressures that will not ease in any shape or form in the near future. If the police are not turning up to crime, they are not going to turn up in that circumstance. We are slightly concerned that people who are victims could be further exploited.

There are also issues for businesses. At a Law Society event, I spoke to one of your colleagues, who indicated that, regularly, as he goes to open his business in the morning, there is somebody unconscious in the doorway. Part of the issue, certainly for me, is that, if you repeal the legislation — I am not suggesting that you should not — it cannot be done in a vacuum. There need to be support mechanisms in place to help people and get them off the streets. There are zero addiction services and help now: that is the problem. There has to be a complete package. Removing the legislation may be the right thing to do, but it is not sufficient to do that and leave all this to carry on regardless.

Mr McVeigh: I suggest, with respect, that keeping the legislation on the books because nothing is there to capture that person gives the opportunity to continue to criminalise people who should be captured in some other way. Repealing the legislation from the books would create a fait accompli, because someone would then have to take steps to deal with the problem. Leaving it on the books would retain the opportunity to criminalise the vulnerable, whereas removing it from the books would create an argument to say, "Once we had that legislation; now we do not. What are we going to do about it?". It would be great if, by the time it were repealed, there was something in place to replace it. On this aspect of the Bill, some focus should be put on the argument that you make.

The Chairperson (Ms Bunting): That is what we are trying to do: we are trying to explore it. Of course, we do not want to see it happen, but we are slightly concerned about the other aspects. The Department has said, "Council by-laws can deal with it". I do not know what your experience is, but most of us have been councillors and have seen how effective council by-laws are. If nobody is there, the by-laws are not enforced. Even if somebody is there, it is difficult to enforce them.

Mr McVeigh: They will enforce the by-law on dropping a cigarette —

The Chairperson (Ms Bunting): But they do not.

Mr McVeigh: — but they will do nothing about this. If we, as a society, thought and cared more about the human being who is on the street than the cigarette that has been dropped beside a bin — by the way, I would not encourage that habit — maybe we would move forward on the problem and have something in place to capture people who are being criminalised by the provision.

Mr McKenna: It is difficult. I remember seeing, at a criminal justice event, a powerful photograph of significant spikes on the street, which were there to stop people sleeping in sleeping bags. It is similar — maybe the other way round — in this debate. I get the logic that you want to protect any way in which somebody may get support, but, on the ground, if the police are called to a begging situation, they have little choice but to give the person a token diversion or advice and warning. Alternatively, the person ends up under arrest in a police station. They will be taken to court, and, if they do not have a bail address, they may end up in Hydebank or Maghaberry. Ultimately, they may get a number of days in custody or a fine. If you follow through with that concern, I am not entirely sure that there will be any real benefit to the majority of people who encounter the police.

The Chairperson (Ms Bunting): We need to figure out and get some stats on what the police do when they attend, whether there consistency is across the board and how they handle things. That will give us some indication.

Mr McKenna: There are other organisations that do impressive work on the streets. In Belfast, they drive up and down the streets and alleys to check. It may be worth having a discussion with those organisations also.

The Chairperson (Ms Bunting): Yes, the street teams and street pastors. We probably need to hear from them at some stage.

Has anybody got any questions on live links and the amendments? Is there anything else on the Law Society's paper? Does anybody want to cover any other general points while the gents are with us?

Mr McVeigh: May I raise one thing before anybody else speaks?

The Chairperson (Ms Bunting): Yes, of course.

Mr McVeigh: The commencement of the retention period from conviction did not come up when we talked about biometrics. I respectfully ask the Committee this: why is that not from the point at which the data is obtained? For example, if you are one of the people who will be subject to, say, a five-year retention, and it takes three years for your case to be prosecuted and for you to go through the system, why do the police get to keep your data for seven years, not a further two? I ask the Committee to consider the fact that it commences at the point of conviction, with regard to some of the provisions, and reflect on whether that it should commence from the point at which it is obtained.

I have a client who is subject to investigation and their case has still not been heard, 10 years later. Think about it: we are 10 years into the 25-year retention period that that person may be subject to, but, if they are convicted this year, that 25 years starts this year. To my mind, that sounds like a disproportionate infringement of their rights. I want to flag that up before I leave.

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

Ms Ferguson: It was brought up previously.

The Chairperson (Ms Bunting): We will check. Are members content that, if we do not have an answer to that in our tabled papers, we will seek one from the Department, so that we can understand the rationale and make decisions of our own?

Miss Hargey: I am also keen to see what happens in Scotland as regards commencement, as a cross reference.

The Chairperson (Ms Bunting): As nobody has anything further, I will thank you very much, gentlemen. You have been generous with your time and your answers. It has been really helpful for us to see and consider the practical aspects.

Do you have any update on Brian Archer?

Mr McKenna: No. I just checked to see whether we had received anything. Thank you for your patience earlier.

The Chairperson (Ms Bunting): Of course. Please pass on our very best to him. Brian has been before the Committee numerous times, so we know him. Please pass on our good wishes to him for a speedy recovery.

Mr McKenna: I will do.

The Chairperson (Ms Bunting): Thank you very much indeed.