Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): With us today is John Wadham, the Policing Board's human rights adviser. John, it is nice to see you in a different capacity.

Mr John Wadham (Northern Ireland Policing Board): I know.

The Chairperson (Ms Bunting): I appreciate that you have just come from a committee, and you are probably exhausted, but here we are again. With John is his colleague Jill Hughes. Jill, thank you very much for coming; you are very welcome. Jill will sit at the table with John in an administrative support capacity. As far as we are aware, Jill will not be giving evidence, so she should not be considered as a witness. The witness is John. You are very welcome; thank you very much. John., we will hand over to you for opening remarks, if that works for you, and you will then take questions from members, I presume.

Mr Wadham: That would be great. Thank you very much.

The Chairperson (Ms Bunting): Have you settled in? Have you had a chance to gather your —.

Mr Wadham: I am going to pass my big file to Jill, so she is going to find things when you ask me the difficult questions.

The Chairperson (Ms Bunting): That is great. John, thank you very much. We will hand over to you.

Mr Wadham: I am the human rights adviser to the Policing Board. Supporting me is Jill, the human rights and professional standards officer of the Policing Board. As you know, part of the board's oversight responsibility — this is in statute — is its requirement to ensure that the PSNI complies with human rights. Since the board was set up, it has had a semi-independent human rights adviser. The first one was Keir Starmer. I do not know whether you have heard of him; he went on to other things.

I have developed vetting security clearance, which enables me to delve a little more closely into what policing is about, particularly in sensitive and covert processes, which the board members themselves cannot really do. Through written reports and recommendations, my role is to reassure the board that the parts of the PSNI's operations that might concern human rights issues can be considered. I produce an annual report, and my sixth annual report was discussed at a committee today. I have also produced thematic reports; one on policing and privacy, which you mentioned, Chair, and a report on children and young people. I am coming to the end of my sixth year. I should have stayed only five years, but it was too good a job to leave, so I have stayed another year. The board is in the process of recruiting a replacement.

I have read a lot of the evidence that you have received on the Justice Bill, and I will not repeat it, but I will say that I met the Children's Commissioner recently and that I have seen his concerns and those of the Northern Ireland Human Rights Commission. Generally speaking, I support them in those concerns, so I will not repeat what they said. The only other thing worth mentioning is that a majority of the Policing Board decided, in its children's rights report, to support the minimum age of criminal responsibility being increased to 14.

I will pick up two or three issues. I thought that the Committee would be most interested in my views on biometric data retention, but first I will talk about some of the things that my colleagues mentioned to you when they came here. In relation to the live links processes that are set out in the Justice Bill, I can see why live links are very sensible for effectiveness and efficiency, particularly where defendants, lawyers and the court are in different places. Having been a lawyer in the past, I am a bit anxious that that efficiency might get in the way of individuals being able to properly get legal advice and understand what they are going through and what is happening in court. I was a solicitor in private practice who did defence work as well as other things. It may be surprising to people who have not been in courts, but what people see about themselves, what questions are asked and what their lawyer says are often very confusing. Sometimes they need a bit of space to talk to people. You can imagine the situation where someone is online in court, and their lawyer is somewhere else. The hearing might just be about bail or something like that, but I think that that is problematic. I am not sure what the solution is to make sure that people understand what is happening to them in court, what their lawyer is saying to them and what advice they can get, but it is problematic. Some people commit serious offences, and they might be very competent in understanding the legal process, but some people, particularly children and young people or those with mental health issues, drug addictions or whatever else, need a different way of dealing with the court, in a sense. I am a bit anxious about that. I should say that what I am saying is not the details of what the board has considered. The board is concerned about it, and its members have read the other evidence, but a lot of what I am going to be saying is my own opinion. I do not pretend to represent the board, because the board is mainly concerned about policing and accountability.

Secondly, we did a report on children and young people in policing and another on the strip-searching of children and young people in custody. When we talked about how that process worked, forgetting the details about strip-searching, it seemed to me that custody was the wrong environment for children to be kept in overnight. Obviously, there is a resource issue, and there needs to be somewhere else where people are placed. You can imagine some people who are 17 — boys and young men — perhaps not needing that kind of support, but, of course, you can be arrested when you are young. There needs to be a process for people who might have got into trouble despite not necessarily having set out to do so. Over the past few nights, we have seen young people being encouraged to take some of the actions that they have taken. Some of those people will be processed through the courts. Being in custody overnight will not be useful for them or anyone else.

I will make a last point before I get on to biometrics. I do not know whether you have seen information about this, but the Policing Board runs the independent custody visitor system, where volunteers trained by the Policing Board attend police stations to check on the welfare of individuals who are in the cells. Generally speaking, when detainees are asleep or drunk or unable to give consent, we have had access to check on them by looking at the custody record. There has been a problem with the legislation. We wrote to the Justice Minister to see whether the legal barrier in respect of allowing our custody visitors to have access to the custody record needs to be fixed. I do not know whether that issue will come to you. We have written to the Justice Minister, and we are engaged with both the PSNI and the Department of Justice.

Just on biometrics — then I will be happy to deal with questions — the correct principle for the retention of biometrics, be they photographs or DNA or whatever, is proportionality. That includes the person's age, the seriousness of the offence, previous convictions and, obviously, the risk of a person committing other offences in the future.

However, there has been a problem, and I have identified that in a variety of reports. As you will know, there was legislation that would have fixed this some time ago, but it was never implemented.

I am happy to stop there and deal with questions, or I can carry on, Chair, if you want me to set out what I think the problems are with the Bill.

The Chairperson (Ms Bunting): Are members content for John to carry on?

Mr Wadham: OK. I think that there has been some discussion about digitised photographs of biometric data, but I think that that may have been resolved by the PSNI and others. In my view, it is about a biometric identifier, so it should be covered by the Bill in the same way that the DNA —.

The Chairperson (Ms Bunting): It is not resolved yet, John, so we are happy enough to hear from you. Go ahead.

Mr Wadham: OK. As far as I understand it, the Information Commissioner's Office (ICO) thinks that it is biometric, and I think that the PSNI does. I will give you an example. If a person goes to a police station, and their picture is taken and is then digitised, that is available for the police in all circumstances. It can be used for identifying you from CCTV that the police can have access to or any other future process. The PSNI is considering how it identifies people using the photographs, including through facial identification systems that use artificial intelligence. That is retrospective. In other words, the police see on CCTV that somebody has misbehaved and committed a crime, and they then try to use the picture that they have of you to match up with the CCTV. It seems to me that that process must be a biometric identifier, in which case, I cannot see what the difficulty is. Of course, as you know, people can be forced to allow the police to take their picture when they are in custody. It is not that you have a choice. That is not to say that it should not be used, but it seems to me that it is right that there are regulations and a process by which that data can be deleted. I will come on to the time periods in a moment.

We know that some police forces, particularly the Metropolitan Police, are now using mobile vans to scan a crowd. The AI system identifies someone whom they are looking for or somebody whom they know about, and it goes "ping", and the police interview or arrest that person. The development of those processes is problematic and raises questions about privacy and the situation regarding due process.

I do not want to go too far into science fiction, but we know that police officers have body-worn cameras. That has been helpful in what they do and also, to some extent, helpful in calming down the person who is in front of the police officer, perhaps reducing unnecessary conflicts and, possibly, violence. However, it does not take much to imagine that, at some point in the future, that mobile camera will be linked to the PSNI's headquarters with those biometric pictures on it. The police officer will be able to know who the person is before they even confront them. I do not want to get into too many scary things. I am not suggesting that the PSNI is developing that at the moment, because it is not, but technology moves quickly. Those are the reasons that protections and regulation of DNA and fingerprints should also apply to photographs.

Shall I pause there or go on?

The Chairperson (Ms Bunting): Are members happy for John to take us through his issues and then we will go into questions?

Mr Wadham: It is good to see that there is a default position in the Bill, which is that biometrics should be destroyed after a particular point. Although that is the law that comes from the European Court of Human Rights and is set out in law in England and Wales, it is not the case in Northern Ireland. You have all read the Bill, I am sure. There are very many exceptions to that. First, there is a speculative searches process, whereby, if you are taken into custody, DNA is taken and digitised, and police can keep it while they search. Now, that seems sensible, but the question is how long that speculative search should continue. As far as I understand it from the Bill, there is no limit to that.

Secondly, there is a three-year retention period if someone is charged and not convicted, including for charges that are, in the legal jargon, "left on the books". That suggests that there is something in between being innocent and being guilty. The principle of being innocent until proven guilty is a little bit eroded by a process in which police keep that material because they might need it in the future. I am talking about people who have not been convicted.

Then, there are other issues that may be of less concern to the Committee about terrorism-related qualifying offences and national security-related qualifying offences. I am concerned about those, but, perhaps, let us move on to the time periods.

As you know, the most significant period is 75 years. I know that other people have said to you that it would be good to know where those time periods come from. Maybe the lawyers at the DOJ and others have worked that out, but I am afraid that I do not understand where those figures come from. Let us say that you are 18 years old, you have committed an offence and you are convicted. In practice, that is for life: it will be retained forever. Maybe it should be, but, if it is really 75 years, in practice, they might as well just say that it is for your whole life. As you will know, it is very complicated, but, in some circumstance, it might happen to a child or young person and the material could be retained for that length of time. That seems particularly problematic.

I have not brought the statistics, but I think that most people know that most crimes are committed by people between the ages of about 15 to 25, and mostly by men. Then, people grow up, take on responsibilities and move away from crime. Most people — not everyone, but most people — will have given that up by the age of 25. You might want to think about whether the time period should actually be dependent on the reality of who commits offences and, in particular, what kind of offences they commit. Perhaps there should be longer periods for sexual and violent offences, not only because they are serious but because the police usually use that material to investigate crime. If you are a burglar, and you are stupid enough not to wear gloves when you burgle, you will leave fingerprints, and you may also leave DNA samples if you cut your finger, or whatever else. If, however, you are a white-collar person who is involved in fraud, it is difficult to see how DNA and fingerprints would ever be useful to the investigation of the offence. I am not suggesting that they should never be taken, but, if you are thinking about proportionality, which is what article 8 of the European Convention on Human Rights and the jurisprudence from the courts suggests, and you are collecting data on people, it should be for a particular reason and proportionate. In other words, it should not be unjustified.

You could have a system where, if the material was going to be useful to the police, the retention period would be longer than when it was not useful. Now, that would make the Bill much more complicated than it already is. However, the periods of retention are too long for people who committed an offence when they were younger than 18 in particular, as the Children's Commissioner said, and for people in general, because most people, thank goodness, stop committing crimes. I suggest that those periods are too long not just in proportionality but in how the European Court of Human Rights might eventually regard them.

There will be examples — I am afraid that I have not been able to tease these out — of where it is disproportionate, and those will be things that perhaps the PSNI and the Department of Justice have not thought about. Then, there will be cases that go through our courts and maybe all the way to the European Court in Strasbourg, and there will be another violation. It is a problem not just for a human rights nerd such as me. The organisation that keeps the data is the PSNI, so if you wanted to challenge the retention, you would have to litigate against the PSNI, which would be a waste of everyone's time if we did not get this right. I therefore urge the Committee to push the DOJ to explain why it thinks that those time periods are correct and to suggest that it be more proportionate by unpicking some of the reasons for retention, including the offence that somebody has committed and whether the retention of their data will be useful in an investigation, rather than just saying, "We'll stick you in the database".

One of the solutions is having the right to challenge retention, and there are two parts to that. My colleague Jill found that, since 2012, the PSNI has received 244 requests for deletion, and, of those, 117 were approved. Assuming that the PSNI got those decisions right, you can see that there is a problem with retention and even the PSNI believes that it is problematic.

The Chairperson (Ms Bunting): Sorry, John. When was that from?

Mr Wadham: Sorry. From 2012 to now, there have been 244 requests, 117 of which have been approved. I do not have any more details about which ones were refused.

The truth is that there are thousands of pieces of retained biometric material and digitised assessments of those. Most people in the street do not know how long the material is retained for or what problems it may cause, so, I guess, that is why the number of people seeking deletion is low. As I say, you met the Children's Commissioner, and heard that that may be a particular issue for children and young people who have had that material taken and then retained, because the PSNI does not automatically give you a form that states, "This is what's happened to this material, and this is how you can apply to have it removed", assuming that that is a possibility.

The process in the Bill should, perhaps, be tightened up. It is probably sensible to apply to the PSNI in the first place to have the data deleted, but I wonder whether the Bill should provide for an appeal to the commissioner so that there is an independent assessment of whether the material should be retained.

There is useful information on the European Court of Human Rights database system about decisions that it has made. That is accessible to anybody. It is a bit legalistic, but generally speaking, that is a possibility. I have looked through that, and although I could not give you details, the Bill raises questions about it. Someone, somewhere in the DOJ, has presumably worked out why they think that those provisions comply with the European Convention on Human Rights, but I have not seen that. It would be interesting to see where they have put the balance. I know that not everyone is a supporter of the Human Rights Act, but that is the law here. It is not the law just in terms of the Human Rights Act, obviously; it is part of the Northern Ireland Act 1998, which means that the Government cannot breach that, and I think that there is a problem that they are doing so. It would be easy to tinker with that, but I would be happy to read the legal advice and see where they think the balance is, because I think that it is not quite right.

I will stop there, if that is OK, Chair.

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

Miss Hargey: I have a few questions. I split them with Ciara so that it is not just me. Thanks very much, John, for coming in. That has been helpful because most of the questions from the board were on the human rights considerations and, as you say, whether they are necessary and proportionate. That is what we are grappling with.

I will cover some of the biometric stuff. Police in Scotland take biometric data for only those under the age of 18 if they are arrested for a violent or sexual offence or otherwise by exception. What is your view of that? We heard from the Children's Commissioner and others about the stigmatisation of young people and for the reasons that you mentioned earlier. People mostly do move on with rehabilitation. My concern with the current model is its impact on children and young people in particular. I am keen to hear your view on that and whether you think that the Scottish model is a better approach to that?

Mr Wadham: It is good news that kids who get into trouble move on and away from that. Modern criminal justice systems around the world try to ensure that labelling a child who has committed an offence does not stick with them so that, whatever happens to them, they can get a job. Obviously, it is problematic and difficult to get a job when you have a criminal conviction. The whole panoply of retention of material raises questions about whether they can have a fresh start. Not everybody is going to move on, and some people will commit offences in the future, but somehow you have to distinguish.

The Scottish model is more sensible because we are saying to children and young people, even some of those whom we have seen in the media in the past three days, that we want them to move away from criminal activities and towards being productive citizens, building their own lives and having a family and having a job. The more stigmatised that you are by the criminal justice system, the less easy it is to move on. There are some bad people who are young who will commit offences in the future, so I am not naive, but the more chances that we give people to move away from crime, the less crime people will commit, I think. That is why the United Nations' Convention on the Rights of the Child pushes on the process of not labelling some kids as being "bad" and then not being able to help them to get away from that.

The Children's Commissioner also raised the issue of diversion. Even with diversion, you can still have your DNA details retained.

Miss Hargey: Yes, I know. My concern about biometrics is their impact on children and young people in particular. The Scottish model is proportionate when looking at more serious offences. There are different allowances for that, but it is not stigmatising as a whole.

I agree that photos should be considered as biometric. The PSNI currently holds around 182,000 photos. The Scottish Biometrics Commissioner, who is a former police officer, said that they would keep everything if they could. Again, are the checks and balances there?

We got some rationale for the retention periods in correspondence from the Department, which referred to the Sunita Mason review of criminal records. The review said that records should be held for 100 years. That is some guidance, but we are trying to push the Department on providing more rationale for the retention periods, because, as you said, the upper limit is 75 years. If a person does not commit an offence until they are 15 or even 25, that is a lifetime. On the whole, they will probably be dead before their records are deleted, if the upper limit is imposed.

Mr Wadham: I will pick up on that point. I am not sure about this, but you may want to investigate it. Depending on the nature of the collection of data from a DNA sample, it is possible to identify people's relatives from it. I do not know whether the 100-year process is recommended because someone's relatives can be identified. That may be particularly problematic. I do not know what the PSNI will do about that or how easy it is to collect data that allows someone's relatives to be identified from a sample, but that might be something to consider. I would have thought that the review that you mentioned would have considered that, but I have not read it.

Miss Hargey: OK. The 2023 'Human Rights Review of Privacy and Policing' made five recommendations on effective and efficient use of data-driven technology. To your knowledge, have the recommendations of that review been implemented? They relate to some of the queries that we have on data retention. New systems will have to be put in place, and the PSNI will need a bit of time. Those are some of the issues that it raised. The recommendations are on, I think, pages 10 and 11 of the 2023 report. Have they been adopted by the PSNI? If they have not, has a rationale been given, that you are aware of?

Mr Wadham: No. The PSNI's original response was to reject the majority of the recommendations. We are now building up a different process with the PSNI, because, although that was its first response, my work on human rights and that of other people on the board moved on to other things, and we did not have the time to discuss what the process should be with the PSNI.

In fact, Jill has just organised a meeting for the first week of July to talk through some of those issues with the PSNI. Having spoken to senior officers, I know that the PSNI is anxious that the steps that it might be interested in taking not just on biometric retention but on other things such as artificial intelligence and facial recognition systems, which are being taken in other places, particularly in police forces in England and Wales, should be discussed by the democratic accountability systems. I was anxious because I thought that there was some democratic deficit, to use the technical jargon. I was not sure that the Assembly was really helping the PSNI to decide what was or was not acceptable. Once you get into privacy issues, you get into the issue of the collection of data not just of people who have committed offences but of a significant number of other people. You need only to look around in the centre of Belfast to see all the cameras that are collecting data.

I am teaching you to suck eggs, but I do not mind doing that. It seems to me that the Government and democratically elected representatives need to ask, "What kind of society do we want to be in, and where are the limits to what policing is involved with?". In a sense, my big plea is, "Let's do that". That is why we were talking about inviting the Justice Minister to a seminar with the PSNI and, hopefully, Members of the Assembly to talk about this. There are relatively urgent things to discuss, such as the retention periods in the Bill, but other things are on their way. Those include the use of AI, which can be for all kinds of good purposes, but people are concerned about other things.

There is a bigger ask than that report. As I said, however, we are pushing ahead with the PSNI, at least from the Policing Board's perspective, to discuss those issues in a more open-ended way than just saying, "You shouldn't do this" or "You should do that".

Miss Hargey: That has come up in the evidence as well. You have the "Big Brother is watching" stuff in England, the Ada Lovelace Institute and others. On page 23 of your report, you point out that the PSNI does not use facial recognition technology at the moment but is actively considering it. I just wanted to know whether that is still the view or whether those conversations have progressed since that report was published. I wanted to see what the most up-to-date information is. Part of the challenge is how we future-proof the legislation against technological advances. God knows where it will be in five or 10 years' time. I just wanted your sense of the PSNI's thinking in that area.

Mr Wadham: The PSNI has not started using what is called "live time" or live facial recognition (LFR). In other words, you put a camera in the street, and you get hits from people who might be wanted or something like that. The PSNI has not done that, but, not surprisingly, it is using retrospective recognition. It will have used footage from last night. I was going to say that it will use it tonight, but, hopefully, things will have calmed down. The cameras on top of the Land Rovers will video the behaviour, and the police will then look for the perpetrators of the violence. No one would think that that was a bad thing, because, if the person involved were to be prosecuted, they could say, "I wasn't there" or "I didn't do it" etc.

The PSNI has not taken the step of extending that to videoing the streets in Belfast in the hope that it comes up with a hit. The Home Office in London and police forces throughout England and Wales are beginning to do that, and there are real concerns from some organisations and some members of the public around false identification, particularly in relation to ethnic minorities etc. There is pressure on policing to modernise and to do its best to nick the villains. No one can say that that is a bad thing, but there has to be a balance between that and issues of privacy. There needs to be a bigger discussion about where, as a society, we go with those things.

For me, a few years ago, that was illustrated by what the PSNI was doing in its investigation of what was happening in Muckamore. It sought and bought some technology that allowed police officers to identify a particular perpetrator on the CCTV in Muckamore. The AI searched through the rest of the material to see where else that perpetrator had been and to determine whether they had committed other offences. If you have identified someone who is suspected of a crime and you are looking through this stuff retrospectively, that, for me at least, seemed to be an acceptable place for the police to be in that instance. However, that is not quite how it works: it works the other way round in the sense that, if we put these cameras on and we are looking at the public generally in order to see whether they are committing offences, that is much more problematic. It is a tricky line to draw, but that is why it should be for democratic representatives and others to think through. Where should the line be in order to help the PSNI to get it right? Obviously, if it does not, as you probably know, there are lawyers in this country who will be happy to take proceedings against the PSNI. It would be a waste of everyone's resources to get it wrong and have to unpick it later.

Miss Hargey: I ask that because I know that there are scenarios in which it is useful, such as parades, protests and public order incidents. As you said, the police may record rather than intervene at certain times so as not to inflame a situation, but they will go back and look at the recording in order to identify people. The issue, as you say, is wholesale implementation: cameras on the streets. I believe that Wales wanted to introduce that but then pulled back.

Mr Wadham: It did.

Miss Hargey: You said that the police are coming under pressure. We have been looking at updated Police and Criminal Evidence Act (PACE) codes on the back of legislation at Westminster. Is that where the pressure is coming from? Do you think that the PSNI is actively looking at cameras in that way, or is it not yet at that point?

Mr Wadham: When we started writing the report about three years ago, sensible senior police officers were looking at technology, showing it to colleagues and saying, "We should do this". The board intervened and said, "Hang on a minute. Let's have a look at this in more detail". That stopped the live process happening, but the issue has not gone away. Even though I will not be in the job for much longer, we have started to have some conversations with the PSNI about how we take that forward. There needs to be proper discussion before it is implemented, rather than its being driven by new technology in police forces in England and Wales. That is not a political point. I have talked to police officers from the South who are developing body-worn video cameras. They are trying to get that right to make sure that they collect video material only when it is necessary.

The Chairperson (Ms Bunting): I am conscious of time. We need to cut the preamble to the bare bones, or not have any at all, and go straight to questions. We are aiming to go straight to questions and straight to answers, please.

Mr Bradley: Thanks very much for your presentation, John. I talked earlier in the meeting about the lack of quality of live links: the signal can drop, and things can go wrong with the video or audio. However, you raised something that causes me more concern: a defendant may appear via live link from one place; his representative may appear via live link from another. That is problematic. We need to make sure that that does not happen. There should be something in the Bill to say that a defendant appearing via live link must be in the same room as his representative. That is a big concern.

The pace at which AI is developing is unbelievable. I am led to believe that it has now reached the stage at which it is able to enhance its own capabilities, but we will see. There are instances in which, if there is a historical video of a crime in which a person can be recognised, and if there is a video of the same person that has been taken recently, AI can match that person with that crime. That is a big thing. I welcome that advancement. That just shows you where we are at: even if a person is wearing a mask, they can still be recognised from their facial features or the way in which they walk etc. AI can pinpoint somebody who has committed a historical crime, if there is an up-to-date video of them. That is a problem.

If a young person commits a serious crime, I have no issue whatsoever with their biometrics being kept. However, there are young people who get caught up in the moment and are highly unlikely to ever commit a crime again. At the point of arrest and charge, the PSNI should have a sheet detailing how the person can apply to have their biometrics deleted from the system. What are your thoughts on those two issues?

Mr Wadham: I am conscious of what has happened over the past three nights. There will be bad people who have done bad things, and they should be prosecuted. If they are convicted, their biometric sample should be kept, because they may be a threat to other people. There will also be people on the edges of those situations who then get caught up in them. You need to distinguish between the two. There have been cases in which people have been falsely identified. The criminal justice system is all about trying to be as careful as possible to ensure that people who are guilty are punished and that people who are not guilty are not. Secondly, it is about ensuring that people are given a second chance so that, as you said, if they have not committed a serious offence, they are not caught up in the criminal justice system, which could stay with them for ever. I will patronise you again and say that that is your job. As a Justice Committee, you have to see whether the Government are getting that balance right. You are absolutely right to raise those kinds of questions for those people.

If you start off with the crime, so to speak, and you investigate the crime to find the person responsible, it seems perfectly acceptable for you to use any evidence that you can find. However, if you were to be much more speculative in a sense by watching all of the public in case someone commits a crime — keeping everybody under surveillance all the time — that is when I would be more anxious. For instance, as far as I understand it, a peaceful protest occurred on Monday night. If the police had videoed the peaceful protest, kept that data and knew that you were protesting about immigration or whatever it was, that would be one thing, but videoing people who were being violent and committing crimes is different. You are absolutely right to try to distinguish between those two scenarios.

I think that I have been talking for too long, Chair.

Mr Bradley: I have one point to raise. At the point of arrest or charge, a young person could be given that sheet to tell them how they can apply to have their data deleted [Inaudible.]

Mr Wadham: Exactly. I do not think that people know whether the data is collected or that they can have it deleted. The PSNI has financial problems, and it is problematic, but it is a fundamental right to know what the PSNI or the Government generally have on you, whether that is accurate and whether you can have it deleted.

Mr Bradley: Thank you, John.

Ms Ferguson: Thank you, John. I apologise for being a bit late and coming in at the start of your presentation. My first question relates to the essential requirement for the reviewer of biometric material to be independent. What are your thoughts on the Department of Justice legal adviser saying that the Chief Constable is not independent from the policymaker or from those who will carry out the policy, which is the PSNI?

The other area that I want to look at relates to communication and informing individuals. I am curious: does the PSNI, in order to comply with the first principle of data protection, have a policy of informing individuals in advance how their biometric materials will be processed? Secondly, when you considered rights, did you give any consideration to how the rights, including the appeal rights that you discussed, will be communicated to individuals, especially children? We have had many presentations at Committee about vulnerable children and how we can ensure that they are informed of their rights and that those are clearly communicated. That particularly relates to the retention aspect that we talked about.

Following on from that, have you considered how the PSNI will be able to securely manage and implement the varying retention periods when biometric data is shared across different UK databases and how it can ensure that individuals are appropriately informed? That was me trying to be as succinct as possible. Was that OK, Chair?

Mr Wadham: Thank you for those difficult questions.

The Chairperson (Ms Bunting): Thank you. I am just trying to make sure that John got a note of all seven or eight of those questions. John, did you get them all?

Mr Wadham: The Chief Constable has been at the board to tell its members what has been happening over the past few days. Quite rightly, Jon Boutcher is independent. His job is policing. His job is to protect people and find the evidence. That is his job, and it is quite right that that is his job. Someone else should look independently at how much data is collected. I am old, and I have had a long career in policing and human rights. A police officer's job is to protect the public, but that does not mean that everything that they say or do is the right thing for society generally. I am a fan of Jon Boutcher, but somebody else should look at the issue and ask "What are the policing needs for the retention of that data on the balance of probabilities?". That is why I suggest some kind of process whereby the new biometric commissioner has some appeal process or whatever else. That is the first thing.

The second thing is that, as far as I know, you do not get a form when you leave custody that says what happens to your DNA. My guess is that you might be told when the DNA sample or fingerprints are taken. I feel as though I should know the answer to that, but I do not.

Going forward, that would be sensible. I am sure that you have all found the draft Justice Bill very difficult to understand. That is a problem in itself, particularly if you were trying to explain to someone whether their material had been retained and how long that would be for. That will be difficult for the PSNI generally. Whatever the law, it should be explained as clearly as possible, and there should be something that people can take away. I have been in police stations a lot — only once as a suspect, but I can tell you that story another time. I was cleared, and I sued the police. Anyway, people can be very confused when they are in police custody, and they need something to take away. They can then sit with their parents or whomever and ask "OK. What does this mean? What should we do about it?". However, because the legislation is so complicated, that would be difficult to do.

Ms Ferguson: Thank you.

The Chairperson (Ms Bunting): I am happy for you to ask questions. I want to make sure that John got all the questions that you asked. Has everything been covered?

Ms Ferguson: Up to the sharing of databases across the UK and how you inform the appropriate authorities. Having worked under AccessNI, I get that there is an issue. If there was a grey area in specific jobs or crimes, I had to go to the legislation. It is difficult, as is how to communicate that to the individual. You have reinforced the point that it is difficult. However, it is critical that people be informed early in the process of how exactly their data will be used, under what legislation, for how long and who will have access to it.

Mr Wadham: In our privacy report, we tried to sketch out how many databases there are and which databases the PSNI has access to, and it is quite scary. People say that, if you have nothing to hide, you have nothing to lose. However, the truth is that I have come across miscarriages of justice in my career. The problem is that people get labelled and material is misused. That is why we have protections, that is why we have the Human Rights Act, and that is why we have a Justice Committee, I guess.

Ms Ferguson: Thank you.

Mr Baker: John, in your opinion, has the PSNI made any progress in addressing the scale of the human rights breaches that children and young people face when they come into contact with police?

Mr Wadham: Do you mean following my report?

Mr Baker: Yes.

Mr Wadham: The process that we go through is that we write a report, send it to the PSNI and publish it. We then expect the PSNI to respond within six months. We are waiting for a response, and I understand that it will come next week. We have had lots of useful conversations with the Deputy Chief Constable (DCC) and others, and the report was welcomed by the PSNI, so I hope that its response will be positive. However, my job and the job of the board is to push, and we do not get a green light to everything. Watch this space. I hope that it will be at least 50% successful.

Mr Baker: How much work needs to be done to address many of those serious issues?

Mr Wadham: We launched the report in a youth club in December. The youth club organised the event because a member of the board is involved in the club. The club asked the new DCC to speak about this. He was very positive about the report and about bringing children and young people together to talk about the issues. The amazing thing was that the youth club had cafe-style tables for the kids and young people, and each table had a local police officer sitting with them and talking about the issues. I thought that that was a really good way to take these things forward. When you talk to children and young people, they complain about stop-and-search a lot, not necessarily because they have been badly treated when stopped and searched but because there are rumours about how it is used. I do not know whether all the rumours are true. I am quite critical of how the PSNI use stop and search. You need to get away from those rumours and stories and get people to talk to each other. The kids talked to us about neighbourhood officers. I know that there are resource issues, but building links between people on the ground seems to be the key to police officers, children and young people working together, rather than one group feeling that is being targeted unnecessarily by the other.

Mr Baker: That is it —100%. I do a bit of youth work, and that front-facing engagement, especially with neighborhood teams, is very important. However, there were slight criticisms from children's rights advocates that the seriousness of some the issues was not really reflected in the report's recommendations.

Mr Wadham: OK. I had not heard that, but you can let me know after this session.

The Chairperson (Ms Bunting): Yes, that is a separate issue and not related to the Bill.

Mr Baker: I thought that I would mention it when I had you in front of me.

I go back to children and young people. In your opinion, with regard to biometrics, is article 8 of the European Convention on Human Rights being breached?

Mr Wadham: It is at the moment. There is no doubt about it. As you said, there are thousands and thousands of bits of data held on people in Northern Ireland that need to be deleted. As far as I understand it, the software does not even allow that bulk deletion to occur. That has happened since the case of statutory management requirement (SMR) some considerable time ago, and that is the problem.

I have joked with people that my next job will be to set up a firm of solicitors in Northern Ireland and tell people who think that their data might be unlawfully retained to come to me, and I will make loads of money, but I will not do that.

It is not something that the PSNI can fix easily, because it needs legislation. Once the laws change, the PSNI can do the bulk deletion, I hope, rather than waiting for the few hundred people who might think that their data needs to be deleted to act. It is never going to work, and thousands of people are having their DNA biometrics retained unlawfully. There is no doubt about that. It is not the PSNI's fault.

That is one of the reasons why the board is particularly concerned about the issue. Nobody can sue the Assembly for failing to produce the necessary legislation. If someone wanted a remedy, they would have to sue the PSNI, which is not in anyone's interest, except that of lawyers.

Mr Baker: My last question is on children knowing their human rights, particularly with us having one of the lowest ages of criminal responsibility: it is 10 here. I am interested in your opinion. Is there a body of work that needs to be done to educate our young people on what their rights really are?

Mr Wadham: The PSNI produced a good card recently on stop-and-search, which is a good start. Our research suggests that there are lots of rumours and false stories, although there are true stories as well. I am particularly concerned because, statistically speaking, the first contact that a young person has with the PSNI is often when they are stopped and searched, rather than when they have been a victim of crime and are being helped. We know what a good job the PSNI is doing in protecting people and investigating crime, but that is not always the view that young people have.

As the Chair knows, I spend a lot of time talking about stop-and-search, but that is not the subject of this session. However, there needs to be a relationship between children and young people and the police who are there to protect them. In some communities, that is not what is happening.

Miss Hargey: You answered Danny's question on the breach of article 8, but there are proposals to retain data for five years even if an offence has not been committed. Do you believe that that could also be a potential breach?

Mr Wadham: Yes, because the way that article 8 works and the way that the European Court of Human Rights works is that you are innocent until proven guilty, so data should not be collected on you until you are guilty. In general, therefore, that is problematic.

Obviously, going forward, it could be used in a much more careful way by the PSNI, and there could be particular circumstances where it is justified, but, in general, it cannot be right.

Miss Hargey: OK. Thank you.

The Chairperson (Ms Bunting): John, I have about nine questions that I want to work through.

Mr Wadham: Nine? [Laughter.]

The Chairperson (Ms Bunting): Yes. That is how many came to me. It is a big issue and a big Bill. First, on the record, I want to pay tribute to Kate, Bobby and the engagement team, who have taken forward a lot of that work —

Mr Wadham: Absolutely.

The Chairperson (Ms Bunting): — in the arena for children and have made a big difference in the police's children and young people's strategy. The launch event at Newforge was really good. Well done to all of the teams that were involved there.

At the outset of your remarks, John, you talked about the Met and what they were doing. Please clarify for us the distinction, to your mind, between what the Met were doing versus what the PSNI does when it is evidence gathering.

Mr Wadham: The Met have vans with cameras on top, turn up to a particular locality and video everyone who is walking by. In other words, they are keeping people under surveillance, with a view to identifying people who are wanted for some reason or other. The PSNI does not do that. If somebody does criminal damage in Belfast, for instance, and the owner of the property complains, the police will look at the CCTV. The PSNI starts from the fact that there was a crime, somebody was involved in it, and it might be able to find out who that was by using the CCTV.

The Chairperson (Ms Bunting): The Met just monitor in a general way.

Mr Wadham: Yes, exactly: that is the difference.

The Chairperson (Ms Bunting): OK. Right. That is helpful. Thank you.

It is proposed that the biometrics commissioner produce not a code of practice but guidelines that could be followed. The Scottish commissioner's recommendation was that there should be a code of practice. Have you a view on that?

Mr Wadham: Especially when legislation is so complex, it is very sensible to have a kind of statutory code so that police officers do not need to look at the legislation and try to get lawyers. It is written in a different way. The code of practice helps police officers to make those decisions, and it also helps members of the public, who do not necessarily have access to the law in all its wonderful detail and can understand the code better. There is no doubt that codes of practice, in any complex area of law, are very sensible.

The Chairperson (Ms Bunting): Another issue that the Scottish commissioner raised was that of a DNA sample versus a DNA profile. The Bill proposes that samples should be destroyed but the profile kept. I am trying to figure this out in my head. I am a big advocate of privacy, and I do not think that DNA should be kept unless you and I agree. I am trying to find balances in things, John. Where is the balance to be struck between the destruction of the sample, retention of the DNA and people's rights in light of technological advancements that could be used were the sample retained?

Mr Wadham: That is a tricky question. Obviously, scene-of-crime samples could be kept for as long as is necessary —

The Chairperson (Ms Bunting): Yes.

Mr Wadham: — because there is no person identified with that. It is true that biometric retention processes in identification will improve, I am sure, over time. However, where we are at the moment and given that DNA samples and the production of an identifier from those samples is pretty standard now, destroying the samples of individuals is not problematic. People are much more anxious, whether justifiably or not, about their samples being stored, because something could go wrong. That sample could find its way to the scene of a crime. I do not want to be too paranoid.

A sample of your DNA has much more information in it than the identifier. When the sample is dealt with to produce an identifier, it produces what is almost a kind of barcode, but it does not have all the other data in it that could be extracted, such as whether you have the possibility of a long-term illness or whatever else about your health and biology. Much more information could be extracted from a sample. That is not done at the moment, but people might, quite justifiably, think, "More data". That includes, as I mentioned, data about relatives and family connections, so I think that the samples should be destroyed. If there is a reason to keep the data, that is a different matter.

The Chairperson (Ms Bunting): The Lady Chief Justice highlighted a couple of issues with youth custody supervision and the issue of age 14 She says:

Have you any comment to make on that?

Mr Wadham: No. I have not researched that issue, so I am not sure. I am sure that what she has said is a possibility, but I do not know how that works with this legislation. I have focused on policing issues. It is akin to that, but it is not something that I know about, I am afraid.

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

We heard from the Ada Lovelace Institute. Do you have any comment to make on the issue of the extent to which biometrics are taken in the private space?

Mr Wadham: The only thing that I will say about that is that we consulted the Ada Lovelace Institute when writing the report. It seemed to be at the cutting edge of what is happening in that space, but I do not know anything about that.

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

To your mind or that of the board, what should the balance be between an individual's rights and protecting the public?

It is just that small question. [Laughter.]

Mr Wadham: Yes. I was not expecting that. As you know, when the human rights adviser produces a report, there is a negotiation between those key issues, which are important to everyone. I think that your question could be answered only in the context of a particular example. Sometimes, the human rights adviser's reports are agreed by everyone, and sometimes they are agreed by the majority. Not everyone agrees with everything that I say all the time, but that is not a surprise. I think —.

The Chairperson (Ms Bunting): Has a majority opinion been expressed?

Mr Wadham: About the balance in general?

The Chairperson (Ms Bunting): Yes.

Mr Wadham: In relation to biometric retention or in general?

The Chairperson (Ms Bunting): In relation to biometric retention.

Mr Wadham: Generally speaking, the board wants to find a balance between the two, and it wants to see the PSNI being protected by legislation — in other words, that there is clarity about what it can and cannot do. I think that the board, collectively, believes that one of the ways forward on getting the balance right is to have a biometric commissioner. What I said about a balance between 25 years, 50 years and 75 years is my position, not the board's. The board has not discussed that level of detail.

The Chairperson (Ms Bunting): Thank you. I have had dealings with a particular legacy case that is not Troubles-related. Fifty years ago, a female was murdered. There were evidential samples and suspects at that time. I will not give the number of suspects, because that would be an identifier, but it was a small number of suspects, each of whom, I think, is now dead. If somebody has not been charged with a crime and their samples are destroyed, where does that leave families who might, down the line, even if the suspects are now dead, have been able to get some information and closure on what happened to their loved one? Has that been considered? I know that the legacy issue is different; I am asking about retention periods.

Mr Wadham: If what is in the Bill is enacted, those periods will be very long, so that issue will probably not occur in future.

The Chairperson (Ms Bunting): Those would be destroyed.

Mr Wadham: The samples? Yes, after 75 years.

The Chairperson (Ms Bunting): If somebody has not been convicted of anything, is their DNA not destroyed after three years?

Mr Wadham: I see. The suspect never had their had their DNA taken, so they —.

The Chairperson (Ms Bunting): The issue is that they could not be charged — it was 50 years ago — and were therefore never convicted of anything. In that arena, in theory, their DNA —.

Mr Wadham: They could be arrested, and their DNA could be taken and compared with a sample from the scene of the crime or the DNA profile. Is that what you are thinking about?

The Chairperson (Ms Bunting): Yes. If they are not charged because their sample is not sufficient to find anything, it would be destroyed, they would be let go and the family would never —. I am thinking about the retention period and technological advancements. I am also in the, "They should not have a right to take your DNA when you have not been found guilty" space; however, just because people have not been found guilty does not mean that they are not guilty.

Mr Wadham: Of course that is right.

The Chairperson (Ms Bunting): I am trying to find the balance between —

Mr Wadham: Chair, you are absolutely right.

The Chairperson (Ms Bunting): — what is a reasonable period and how we —.

Mr Wadham: As I said — I know that you agree with and understand this — the presumption is that you are innocent until proven guilty. If somebody is a suspect, they can be arrested. If there is reasonable suspicion that they were involved in a crime, they can be arrested and their DNA can be taken. A profile can be produced that can be compared with a sample from the scene of the crime. The system will work in those circumstances now. They do not need to be convicted in order for the DNA to be taken in the first place; they just need to be a suspect. If they were not, —.

The Chairperson (Ms Bunting): Is the three-year period sufficient for the police to conduct an investigation and rule somebody in or out?

Mr Wadham: The only such scenario that I can think of is a murder case in which the person was not a suspect, or, for some reason, no DNA was taken. Generally speaking, you do not need to be convicted for the DNA to be taken in the first place. If it is retained for three years or whatever period but DNA is then discovered beyond that period, I can see that that would create a problem.

The Chairperson (Ms Bunting): Right. Essentially, then, in your mind, three years is sufficient for the —.

Mr Wadham: Three years is a long time to be held to be maybe guilty, maybe not. I think that, if someone is not convicted, there should be good reasons for DNA to be retained. Three years is a pretty arbitrary period, so, at some point in the future, another sample could be produced that links that person to the crime. I do not know whether you know this, but I understand that every baby has a blood sample taken when they are born to check for issues. That is retained, so you could get DNA samples from and then produce DNA profiles for everyone. They could be on a massive database, which would resolve your problem, but most people think that that goes too far and that the trigger, in a sense, should be being found guilty. I completely understand that, in some cases, families will not get the closure that they need because of the rules that we have in the criminal justice system to protect people's being innocent until proven guilty.

That is always a tricky balance. I have told you where the balance is and where it should be, I think

The Chairperson (Ms Bunting): I am trying to work through it in my mind. It has been flagged to us, John, that there is an issue around appropriate adults. You will see in the Bill protections for younger people and those who are vulnerable when it comes to live links and so on. It was flagged by the Law Society that appropriate adults or, indeed, social services often do not highlight to young people the importance of their having legal representation in the custody setting. Has the board or the PSNI expressed a view on that?

Mr Wadham: Only as an aside. When we did our report on the strip-searching of children and young people in custody, the legislation was clear that there should be an appropriate adult for the child or young person. Often, that was not happening, despite the fact that there is an organisation called MindWise that provides appropriate adults when the family is not able to go or the person is in care or whatever. Generally, that system works well, but it requires somebody to be called to attend.

As I said when we were producing the report, I have two kids, and, if one of them was in custody and had been arrested, I would be there for them, because, whatever they had done, my job is to be their parent and look after them. I think that most parents think like that. When somebody is in a family who do not care about them or they are separated from their family, irrespective of what other traumas there may be, if they are arrested, they are in a worse place, because the person who turns up from MindWise is trained and is really good, but they are not family —

The Chairperson (Ms Bunting): They are not invested in that sense.

Mr Wadham: — and that is a problem. Of course, the person who may be meeting that appropriate adult for the first time can be confused, "Who is this person? What are they doing here?" That person has a role to ensure that things are done properly. If, however, you have a lawyer there who says, "I'm on your side. My job is to be there for you", that is different. Sometimes, there is confusion about why you need a lawyer when you have an appropriate adult, but they have different roles.

The Chairperson (Ms Bunting): Most certainly, and so do we. The Law Society is flagging that the appropriate adult, who is supposed to impress upon the young or vulnerable person the importance of having legal representation, is not fulfilling that role and that actually it is custody sergeants who are saying, "You really need to get a solicitor". That issue was flagged to the Committee. Has it been flagged to the board? Have the police ever raised it, or has the board ever raised it with the police?

Mr Wadham: No. Only as an aside to what I said, but the board has never considered that particular point. Absolutely not.

The Chairperson (Ms Bunting): Will you take that back to the board? That is an important issue, John.

Mr Wadham: Yes.

The Chairperson (Ms Bunting): Thank you. This is my final question on this subject.

Mr Wadham: I think that this is your ninth. I have been counting.

The Chairperson (Ms Bunting): It is. With regard to the development of the IT system around biometrics, retention periods and so on, the Department is talking about bringing forward review periods in regulations after the fact, which would mean that development of the IT system by the PSNI would be substantially under way before it had any idea of what was coming forward with regard to reviews and so on. Has the board had conversations on that or expressed concern over that?

Mr Wadham: No. The board has not gone into the Bill in that level of detail. As you know, Chair, I am always happy to give my opinions —

The Chairperson (Ms Bunting): Please do.

Mr Wadham: — even when they are not asked for. The legislation is very complicated. If you wanted to find your way through this, there would be the Act or order, but then there would be all the regulations, and trying to make sense of them without a lawyer would be problematic. It would be much more sensible to have the key rules, including the ones that you mentioned, in the legislation itself and to make that easier to understand. Sometimes, the details have to be in the regulations — I understand that — but anything that is fundamental should be in the Bill. That is what I was saying.

The Chairperson (Ms Bunting): Yes. There is some concern, as there should be, in the Policing Board about the finances —

Mr Wadham: OK. We will take that back.

The Chairperson (Ms Bunting): — involved in developing an IT system and then having to rejig it to account for everything else that might follow in regulations, as opposed to just developing the system.

Mr Wadham: It sounds very sensible to do it all in one go rather than waiting for regulations, because regulations could take some time.

The Chairperson (Ms Bunting): Indeed. That is great.

Does anybody have anything else? No. John, you have been very generous with your time and your candour. Thank you very much indeed. Jill, thank you for your patience.

Mr Wadham: She did all the hard work.

The Chairperson (Ms Bunting): Thank you very much. We wish you a safe journey back, John. We appreciate hearing from you today. I presume that, if there is anything else that we want to follow up on, we can drop you a line —

Mr Wadham: Absolutely, yes.

The Chairperson (Ms Bunting): — while you are still in tenure.

Mr Wadham: My contract ends at the end of July, but I will probably have to hang around for some other things, including the covert surveillance report from Angus McCullough, which you may have heard of. More of that another time.

The Chairperson (Ms Bunting): Thank you very much, John. We appreciate it.