Official Report: Minutes of Evidence

The Chairperson (Mr Frew): Today, the Committee is receiving oral evidence from the following Department of Justice officials: John Paul Napier, assistant secretary, information systems division; Brian Thomson, head of AccessNI; and Amanda Jenner, policy official, AccessNI. You are very welcome. Without further ado, I invite you to give an opening statement.

Mr John Paul Napier (Department of Justice): Thank you for your introduction and for the opportunity to speak to you today, which is particularly welcome. We have provided you with some written information. Hopefully, that has been useful in outlining how we are moving forward, particularly in relation to the filtering scheme.

I thought that, before we get into details, it might be useful to give you an outline of how AccessNI came about and, particularly, of the filtering scheme itself. When AccessNI was commenced in April 2008, the Police Act 1997 required the disclosure of every relevant matter held on the central record. Operationally, for AccessNI, that meant the disclosure of all relevant criminal record information that was held on the police national computer (PNC). Essentially, all convictions, all cautions and all other non-court disposals were included and shown on disclosure certificates. At that time, the only exception to that was that the information that was contained in our lowest-level basic checks was subject to the spending rules in the Rehabilitation of Offenders (Northern Ireland) Order 1978. For higher-level standard and enhanced checks, the criminal record was disclosed in accordance with the legislative requirements at that time.

In 2011, Sunita Mason undertook a review of the criminal records regime in Northern Ireland and identified the need for proportionality in the disclosure process. That review recommended that a filtering scheme for old and minor convictions for standard and enhanced checks should be implemented. That was on the basis that such information should have little relevance in relation to how an individual was working with vulnerable groups. That is, fundamentally, the overriding issue for AccessNI and our main goal. Subsequent court cases provided further clear indications that a blanket policy for disclosing information was difficult to maintain.

Consequently, in 2014, the Assembly approved an amendment to the Police Act 1997, which legislated for the filtering rules for Northern Ireland. That essentially sets out the time periods and the treatment of old and minor disposals so that adult convictions should be removed from standard and enhanced checks disclosure certificates 11 years after the date of conviction, cautions filtered after six years and informed warnings after one year. The scheme also incorporates a graduated approach for younger people, with significantly shorter time frames applying to the disclosure of information relating to those aged under 18. For example, a conviction awarded when someone was under the age of 18 is filtered at five and a half years.

The current scheme incorporates two exclusions, which require that offences must always be disclosed on standard and enhanced checks, irrespective of how old the conviction is. That exclusion relates, first, to whether the conviction resulted in a custodial sentence and, secondly, whether the offence is on the list of specified offences, which is a long list of serious, violent and sexual offences. That second exclusion is the subject of a proposed amendment — a new clause 29A — to the Justice Bill, which will bring forward the Department's proposals to update and streamline the list in order to reflect new and relevant offences that have been created since 2014 and to make it more straightforward to administer and maintain the list. The list currently includes about 1,200 offences, so it is a long list. The Department's proposals were subject to a 12-week public consultation process in the summer of 2023.

That is a very quick overview of the fundamental aspects of the filtering scheme. AccessNI has published much explanatory information on its website, on the Department of Justice's website and on nidirect, including worked examples.

I thought that it might also be useful for the Committee to be aware of our annual report, which contains statistics for 2024 and 2025. Last year, AccessNI processed almost 134,000 applications for standard and enhanced checks. Of those, 9,600 — 7% — contained criminal record information that was subject to the filtering rules: that is to say, the offences of an individual's criminal record on the PNC that were more than 11 years since conviction, as well as some cautions. Of those 9,600 cases, in 6,200, or 65% of them, convictions or cautions were filtered; so, in two thirds of all the cases that were subject to filtering, some or all of the criminal record was removed from the disclosure certificate, meaning that, in a third of the cases, it was considered that no filtering should occur.

I will move on to subsequent amendments to the filtering scheme. Additional measures that were designed to further improve the arrangements for disclosures from the criminal justice system were built into the wider filtering scheme in 2016 with the introduction of the review mechanism and the role of the independent reviewer of criminal record certificates (IR). In the introduction of the review mechanism, it was recognised that the filtering scheme was, of necessity, a broad-brush approach and that the review mechanism process would enable closer scrutiny of some cases.

Two fundamental principles govern the operation of the review mechanism. First, a conviction that will never be spent is not eligible for review. Secondly, the earliest time at which a conviction can be reviewed is after the period set out in the Rehabilitation of Offenders (Northern Ireland) Order 1978. In regard to both principles, we are mindful that the Department plans to amend rehabilitation periods through the proposals in the Justice Bill that are being considered by the Committee. We will adjust our approach depending on those amendments and will reflect them in our rules.

The review mechanism that is undertaken by the independent reviewer has two main strands. First, the independent reviewer is required to consider all youth disposals where there are no other over-18 disposals in the criminal record, which basically means where nothing has happened since the individual turned 18. That is known as auto referral, and it is done automatically. In 2024-25, there were 612 auto referral cases for the independent reviewer to review. In 97% of the cases, the review resulted in information being removed, and information was retained in only 19 cases.

Of note is the proposal that the role of the independent reviewer be detailed in clause 29 of the Justice Bill. That proposed amendment to the Police Act provides for all youth non-court disposals, irrespective of whether the individual has other criminal matters attributable to them, to be considered. The independent reviewer has undertaken that role on an administrative basis since March 2020. Clause 29 seeks to put that function on a statutory footing. Last year, the independent reviewer reviewed 168 such cases and approved the disclosure of youth non-court disposals in two of them. In 99% of cases, information was removed from or amended on the disclosure certificate.

The IR's second statutory role is to consider appeals submitted by individuals who consider the disclosure of criminal record information to be disproportionate in relation to the role that they seek to undertake. In considering such matters, the independent reviewer can decide to remove offences, including those that resulted in custodial sentences or that are on the specified list. The independent reviewer received 160 such appeals in 2024-25 and removed information in 97·5% of cases, retaining it in only four cases.

Statutory guidance on the role of the independent reviewer requires that, in decisions on the removal of convictions, cautions and disposals, the review must consider the nature of the position being applied for; the seriousness of the offence; how long ago the offence occurred; how many offences are being considered for disclosure and, if more than one, the time span of the offences and whether they are related; and the age of the applicant at the time of the offence, including, in those cases in which the applicant was under the age of 18, the fundamental need to have the best interests of children as the primary consideration.

Thank you for your patience during the briefing. I am happy to take any questions.

The Chairperson (Mr Frew): Thank you very much, John Paul. I will open it out to members first, if that is OK.

Mr Kingston: Thank you for your written report, which is very helpful. Paragraphs 19 and 20 talk about the filtering scheme. It is helpful to read that there is an exclusion where the court disposal or conviction resulted in a custodial sentence and for certain specified offences, which are serious, violent and sexual offences. They will never be filtered out. On how people speak about these things, is "filtering" the same as convictions being spent? When people talk about something being spent, is that what is meant by filtering or is that a different matter?

Mr Brian Thomson (Department of Justice): That is a fair question. It is a point of some confusion. They are completely different. Spending, as you know, is in the rehabilitation of offenders provisions, and there are different rules around when convictions and so on can become spent. To be honest, I do not think that our filtering scheme is as complicated as the spending rules, but slightly different rules apply. For an adult, a conviction would reach 11 years before we would consider it for filtering.

Mr Kingston: It is not the same thing, but it is a similar concept.

Mr Thomson: It is a similar concept.

Mr Kingston: It allows people to move on, as such, from having made a bad decision and so on.

Mr Thomson: Absolutely.

Mr Kingston: Does that information stay on the system with AccessNI, even if something has reached the stage where it has been filtered, in case it was needed and was somehow deemed relevant at some stage?

Mr Napier: The information will always be on the police national computer. AccessNI basically gets access to that information rather than it being that we hold it.

Mr Kingston: Filtering just means that it is not disclosed if it is at a certain level, but it is not deleted. It is still kept.

In paragraph 10, you talk about disclosure of offences that have taken place in other countries, and 15 EU countries are listed. How much wider is it than that? Do arrangements exist with other countries beyond those 15?

Mr Thomson: We would have to go through the Association of Chief Police Officers' Criminal Records Office (ACRO), part of the Home Office, to explore going to other countries, Brian. Those 15 countries are those from which we find we get the most throughput of applicants coming into Northern Ireland and wanting to work with kids in regulated activity. Those are the ones that we have targeted, but that is not to say that we would not have an option to extend that if we wanted to.

Mr Kingston: Does some sort of arrangement exist with most countries in the world where somebody is coming here and their conduct is giving cause for concern? I know that there is an arrangement where someone who is in a personal relationship can check the other person's background. Can that apply to a person who has come from overseas? Is there access to information that is relevant for our criminal justice system to know about?

Mr Thomson: It is restricted to EU member states. There was an EU directive that carried through on Brexit, and we are able to use that. However, we do not go beyond the EU in that sense. When an employer comes to us to do a check on a foreign national, we say to them that they might want to check the local police website, because, sometimes, that posts the details of most wanted and things like that. We suggest that they might want to get a certificate from an embassy about that individual. We are restricted to the UK and EU member states.

Mr Kingston: I am seeking clarity about someone who is volunteering or is in employment with children or vulnerable adults and is not from a country on that list of 15. You talked about the ACRO scheme. How much access is there to someone's past to find out whether they did have any convictions in the past?

Mr Napier: Brian, the other aspect of this is that, if the employer requires the job to have an AccessNI check, it is, obviously, incumbent upon the employer to ensure that the person can meet that requirement. How that actually works is almost part of the employment process. We can seek information with the mechanisms that we have, but that is based on the relationships that we have with the various countries.

Mr Kingston: I will push further on this. One of the areas in which we benefit is the number of people who come here to work in our health system. Many of those people will be coming from outside those EU countries, so is there not access through AccessNI checks to the history of people who are working in the healthcare system?

Ms Amanda Jenner (Department of Justice): There may be other avenues for them to use. For instance, we sometimes get applications for somebody who is going elsewhere, maybe to the States, and they want an AccessNI check for them to show their current employer. Therefore, the employer can request it from the country of origin, which is us.

Mr Napier: The information should really be held by the country of origin; so, it is really those requests that have been made.

Mr Kingston: Can employers here apply to similar authorities overseas?

Ms Jenner: Yes, if it is for safeguarding. It is up to them to explore.

Mr Kingston: OK. Thank you.

Mr Bradley: Thank you very much for your presentation. I have a couple of wee questions. One of them is this: how do you weigh up the severity of a crime committed against the application? Are all applications treated in the same way? For instance, if you have an application for a door supervisor, is it treated with the same careful scrutiny as one for working with primary-school children?

Mr Napier: No. Maurice, the issue is the nature of the job. That is where the filtering scheme and the role of the independent reviewer come into play. The information is looked at to see what level of access or what consideration is applicable given the risk posed. AccessNI is very much about access to vulnerable groups. If somebody is doing a job where they do not have direct contact in that way, the requirement is different. It is about safeguarding those direct engagements and protecting vulnerable people in that space.

Mr Bradley: So is it application specific?

Mr Napier: It has to be application specific: the whole process is based on that.

Mr Thomson: We issue the information to the employer. It is for the employer to look at what is on that criminal record certificate and then make a risk-based decision on whether it is appropriate to go ahead with that recruitment. The criminal record is disclosed, some of the information might be filtered off it, and the employer can then take a decision on whether to proceed.

Mr Bradley: My other question is this. I have recently completed an application online for an organisation that I am involved in. In the next six or seven months, I am going to have to do another three: one for the administration of youth football, another for community work and another for photography within youth football. It is a lot of money, and four different checks: would one check not do all?

Mr Thomson: That is tricky. It comes up all the time, Maurice, in fairness. A lot of people have asked us when the portability of AccessNI checks will be possible. For a long time, AccessNI hung its hat on the disclosure and barring service solution that operated in England and Wales. Those jurisdictions have gone in a different direction, so we are now drawing breath. We are looking at what options we have to allow us to develop portable disclosure certificates, for the very reason that you said — so that people can use the certificate from employment to employment. It is proving difficult, but we are exploring access to a new database with the Home Office — the police national database — which should, hopefully, allow us the potential to deliver portable disclosures.

Mr Napier: Maurice, we must be very clear on what AccessNI does. It is very specific to the role that has been applied for. Filtering is done depending on what the role is. A blanket certificate is problematic. An individual may be appropriate for work in a certain area but not necessarily in others, depending on the level of interaction that they are having. That is part of the reason why AccessNI certificates are specific to the role that the person is actually doing.

Mr Bradley: I did the application digitally. From the point of application to receipt of the certificate, it was all done in the same evening. It was very quick. I give you that credit.

Mr Napier: Thank you.

Ms Ferguson: I want to come in on that point. I do not know whether I am next to ask questions.

The Chairperson (Mr Frew): Go on.

Ms Ferguson: I need to declare that I was in a helper group for AccessNI, and I did stuff years ago to be part of it. The checks are only as good as the day they are done, so I have grave concerns about the certificates being portable. That has been the biggest issue. Recently, individuals have moved to different departments within the health structure and have had to wait to get an AccessNI check again, even though they got it done when working for a different department. I get it, but I also get the fact that they are only as good as the day they were done.

I have a couple of questions. You mentioned that approximately 25% of enhanced applications are referred to the PSNI and that the PSNI then determines whether there is additional non-conviction information that should be disclosed. I have come across people who were shocked when they received their AccessNI certificate because it disclosed something that they were cautioned about. Could you explain the criteria that the PSNI uses on that? That is my first question.

My second question is about your performance and activity report. It showed that the number of applications processed is lower than the number received. How does that situation arise? How are applicants informed about their application not being processed?

Finally, the Department previously advised, in the delegated powers memorandum, that the order to amend the list of non-filterable offences will be subject to negative resolution to allow it to be updated more quickly. How often has that happened, if ever, over the years and under what circumstances? When it comes to filtering, one of the biggest issues is the list of jobs in that legislation. The type of jobs never really evolved, particularly in the community and voluntary sector, in which I worked. At times, it was so difficult to go through the Rehabilitation of Offenders Order and try to explain to someone, "From a legislative point of view, your job is not on that list". Have there been any changes or improvements to that so that it makes it easier for organisations that have new types of jobs to see that reflected in legislation?

Mr Napier: Ciara, I will pick up the last question first and then pass to Brian to address the detail of the other questions.

When it comes to negative resolution, the approach that we are taking is really that that is a continuously changing process in terms of the number of offences. As I said, there are 1,200 offences. From our initial analysis, if they are categorised even with those 1,200, it probably brings you down to about 600 of those offences, basically in terms of categorisation, because there are slight nuances in all of them in the long list. Bringing it down into categorisation will make the process significantly easier. We have gone for negative resolution because it is useful to maintain that going forward, and, as we have in the Bill, offences from 2014 are the ones that we are going to review and make sure that they are added to the list and maintained. That is the rationale. Obviously, we will take the Committee's views on whether that is appropriate, but that is the rationale. It is largely driven by our administrative processes to make sure that these things are updated as quickly as possible.

Brian, do you want to pick up the other questions?

Mr Thomson: Ciara, you asked about referrals to the police. Yes, there are criteria around when we make referrals to the police. If we are searching the PNC and somebody has a criminal record, we will make a referral to the police force that created that criminal record and ask, "Is there any other information about that conviction that you think might be relevant?". Sometimes, a police force will disclose helpful information. A typical example might be indecency. Usually, that is urinating in a public place. Police might add that to the certificate so that, when the employer sees it, they will know what that conviction is about. Another criterion for our sending it to police is if the individual had lived down South in the last five years. The police have an arrangement whereby they can make a referral to the guards, and the guards can look at whether they have relevant information that they might want to share with police and be put on our certificate. I think that about 2,500 referrals went to the guards last year. They might involve people living in Donegal and working in Altnagelvin. That kind of thing is a very real part of what we deal with.

If it is a home-based occupation, such as fostering, adoption or childminding, we will send a referral to police. It is then not just about the applicant but about other people who live in the house and other people who regularly visit that house and whether they could potentially be a risk to the kids who are being looked after in that house. Police do that wider scoping search and could potentially provide information about a third party on a disclosure certificate.

That is all part of that police information piece that is in there. Does that help?

Ms Ferguson: Yes, it does.

Mr Thomson: You asked about applications processed being less than applications received. That is very simple. It is just in-flight cases that we have got that were over the end of year. We were still dealing with cases that had not been closed off as we moved through the end of year. It is just a point in time report that we run.

Ms Ferguson: Thank you for that. That really clarifies it.

Finally, there is a perception out there where people just believe that you need to do an enhanced check, even though, legally, you should not. There is a huge fine for people who are doing enhanced checks when it is really not applicable, according to the job that they are applying for, because they are not working regularly with children over so many hours in a day.

What are your thoughts on that? Has that settled down? Are people seeing the difference between enhanced, standard and basic checks? Is it affecting the volume that you are working on?

Finally, how regularly should organisations do AccessNI checks? In my head, it is every three years. Is it a statutory obligation for organisations to update their AccessNI checks?

Mr Napier: Obviously, they should be updating their AccessNI checks regularly. Three years seems to be the norm in a lot of larger organisations, but that is not a statutory requirement. That has just organisations having their own governance rules. It is good practice. We have our own forms for registered bodies to promote good practice in that space. That is the way that we try to push it forward.

The issue is confusion. We regularly get confused and different questions around the understanding of where AccessNI comes into play. It is really for the employer to determine the nature of the job and the level of exposure. We are just a cog in that wheel. We do not have the level of knowledge around what the job entails. The obligation is really put on the employer to consider the job and the level of check that is required.

Mr Thomson: We bat away quite a lot of applications because they are not eligible for the level of check that they are looking for. A lot of employers would like to get everything about the individual, but we are dealing with some sensitive information there, so we have to make sure that there is an eligibility there.

The Chairperson (Mr Frew): I will keep you on Ciara's question around the negative resolution, if I may. Some of it concerns me, with the whole process of democracy here and the accountability piece.

Are you saying that if a new law for an offence were created and it were not in new schedule 8ZA, you could not place that offence on to a certificate?

Mr Thomson: Yes, in theory. Part of the review flagged that up. We want to be able to control that list of offences in a better way. At the minute, if an offence is added to schedule 2 of the Criminal Justice Order, it appears there. It makes it a non-filterable offence, but nobody told AccessNI, so we were chasing around to try to track those things down.

Therefore, we thought that if we can get a list that we can control and we get the people who are creating offences to get in touch with us and let us know, we think that the new offence should be non-filterable, and we will then add it to the new schedule. It is a schedule that I think will set out very clearly for people using the system what offences are non-filterable.

The Chairperson (Mr Frew): Schedule 8ZA basically replaces the old subsection (6)(d).

Mr Thomson: I would argue that it replaces it and makes it clearer.

The Chairperson (Mr Frew): What would prevent the Department of Justice or any other Department that is creating an offence from putting it in a new Bill that the new offence should be added to the new schedule 8ZA and make it primary?

Mr Thomson: That could work well. We would want to be aware that that change has happened so that we could build that into our processes in the background. Therefore, we would know that it is a new offence, it is non-filterable, we have the offence code and we can build it into our algorithm.

The Chairperson (Mr Frew): It strikes me that if you are at the point of creating a new offence, which is really serious, one of the first things to have built into a new Bill is that everyone will know about it, including AccessNI, so it would be reportable and non-filterable. Why would you not have such a clause in every new Bill? It would mean that you would not really need to use your powers in negative resolution.

Mr Thomson: That is a really good idea. If people did that, it would make life a bit easier for us. We want to look at the list of offences and review it. That is why we are suggesting that a new committee be created to look at the offences and decide. That list of offences has been there for 11 or 12 years. Is it still appropriate that those offences are on that list? They are there because they are in schedule 2 to the Criminal Justice Order, but is it appropriate from a criminal record disclosure perspective that they stay on the list, or do they need to have conditions put against them in some way?

The Chairperson (Mr Frew): Do you think that you are, or even, for that matter, a new committee is, the best arbitrator of that wisdom? If there is an offence that should not really be an offence any more, surely you are talking about the repeal of a law.

Mr Thomson: I am not talking about removing an offence; I am talking about whether it should be non-filterable. A good example is criminal damage, which is a non-filterable offence. Very often, it is there because some young fella has wrecked a bus shelter. Should that stay there and be forever disclosed on an enhanced certificate? At the minute, the answer is yes, because it is in, I think, one of the schedules to the Criminal Justice Order. I would say to the new committee, "Let's look at that and see whether that needs to stay on this". We are almost releasing ourselves from the other schedules and having a defined list for the purposes of filtering.

The Chairperson (Mr Frew): If the young fella who damaged the bus shelter was under 18, that would come into play with regards to the new law. That would be filtered out anyway, due to the fact that he was under 18.

Mr Thomson: No, it is a specified offence, so it stays on.

The Chairperson (Mr Frew): Would it stay on even if were committed below the age of 18?

Mr Thomson: It would. As John touched on in the briefing, they have the option of asking the independent reviewer to look at that. Criminal damage such as that is typically what the independent reviewer will remove. That does not impact on their working with children or vulnerable adults; it maybe happened quite a long time ago. Although filtering at the minute retains it, the independent reviewer will remove it if it is appealed to them.

The Chairperson (Mr Frew): Is the new committee that you talk about a creature of statute? Is there is a clause in either the amendments or in the Bill that creates that committee, or is it outwith the Bill?

Mr Thomson: It is in clause 29A. It requires the Department to consult with the Department of Health, the PSNI and the independent reviewer about any amendments to the new schedule.

The Chairperson (Mr Frew): Is there any body in the whole establishment not on that list that you think should be?

Mr Thomson: You could argue that the Department of Education, or the Education Authority (EA), for example, should be. However, just because those three are called out in the legislation does not mean that we could not ask others to join the committee at a different time.

The Chairperson (Mr Frew): That would not be statute.

Mr Thomson: There would still be the statute for those three.

The Chairperson (Mr Frew): The Probation Board springs to mind. Is the Probation Board on that list?

Mr Thomson: The Probation Board is not a big user of our service. Its staff are not really required to get a lot of checks done. I mentioned the Education Authority because it does 14,000 checks a year.

The Chairperson (Mr Frew): The Probation Board would use it not to check its staff but to look at what could or should be non-filterable offences.

Mr Thomson: I imagine that, if a new offence were created, the officials creating the offence would present to the committee and say, "Here's what this offence is. This is why it's being created. This is how it's going to be dealt with in courts. We believe it's a serious offence, and it should be added to the list", and the committee would then consider whether that is appropriate. Obviously, there would then be the usual amendment process through the Minister to the Committee to have a statutory rule put in place to update the list, if that were so decided.

The Chairperson (Mr Frew): How often would that committee meet, realistically, if it were to review a list of new legislation, or to talk about removing offences from the non-filterable list? We do not do that much legislation here; the committee would not be under the cosh.

Mr Napier: No. I think that there would be an initial meeting to tidy up, and then probably annual meetings.

The Chairperson (Mr Frew): It still begs the question of why you need the speed of the negative resolution procedure and why you would not allow a more thorough, accountable structure under the draft affirmative resolution or the affirmative resolution procedure. The Assembly could then get a say and could even amend something that you were going to do.

Mr Thomson: When we looked at the issue, we had two things in mind. We wanted to streamline the process and make it easier for users to understand. That is why the list is in the schedule. Alongside streamlining the process, it talks about affirmative resolution. The one time that it has been used in recent years was when the domestic abuse offence was created in 2021. To some extent, that decision was a no-brainer. It was very obvious. I do not think that anyone would stand up and say that domestic abuse should be filtered. It makes sense that it would always be non-filtered. A lot of the offences on the list are like that, in that they are serious violent or sexual offences.

Is that a proportionate use of the Assembly's time? I do not think that we will die in a ditch over that issue. We really will not. If the Committee is so keen that it be retained as affirmative resolution, I do not think that we will kick back on that at all. It is about what is proportionate. That is where we were coming from when we put the proposal forward.

The Chairperson (Mr Frew): I will go back to my first point. What if the Bill on domestic violence — I cannot remember its full title — had said that? If you create a Bill about stalking or domestic and sexual violence, you could just put a clause or a line in it to say, "these are non-filterable offences that are to be put in schedule 8ZA". That would tidy everything up, and it would mean that you do not have to go through a procedure.

Mr Thomson: That would be quite neat.

The Chairperson (Mr Frew): I will move on, because people are waiting patiently.

Mr McGlone: Thank you for your presentation. I am intrigued by one aspect of it, which, I realise, relates to court decisions. Paragraph 26 of your written submission talks about changes made in response to the 2019 judgement, which included removing:

Say someone comes in to AccessNI, and their application is for a role as in finance, involving other responsible duties in an organisation that may well deal with children. I can appreciate that other offences have to be automatically disclosed, such as sexual or domestic violence and the like. Say that that person has a number of convictions for fraud. What is your mechanism for dealing with that, because, quite clearly, that would be a red flag to any employer? Your paper — it is your words — says:

What happens there?

Mr Thomson: The way that the original filtering scheme was set up was that, if somebody had more than one conviction, everything had to be disclosed. The Supreme Court found that that was disproportionate and that each conviction should be looked at in its own right. That is the change that we made in 2021. We removed what we called the "multiple conviction rule". What information is disclosed comes back to what John said about the position, because not all jobs are eligible for full disclosure of all information. We would need to look at the type of job that we are talking about.

Mr McGlone: What would happen? I read all that stuff that you just outlined.

Mr Thomson: OK.

Mr McGlone: In a case like that, what would happen to protect the potential employer from being stung again?

Mr Thomson: It depends on the level of check that it has sought. If it is a basic check, information will be spent after a certain period of time. It may be that all they are eligible for is a basic check.

Mr McGlone: I might be reading it wrong, but, as I read it, you removed the multiple convictions rule and require:

What do you do if there is a litany of convictions?

Mr Thomson: Each one is looked at in its own right. It is compared with the filtering scheme. Is it 11 years old? Is it a specified offence? Was there a custodial sentence? Each of those things is looked at in its own right, and a decision is taken on whether we should go ahead and disclose it or remove it from the certificate.

Mr McGlone: That is covered by the 11-year rule, but anything beyond that, even though there could be multiple offences, is not covered. Is that it? Sorry, I am trying to get it. Who is the arbiter that protects the individual who is trying to get the check done too?

Mr Thomson: We would disclose based on that statutory criterion, what the filtering scheme says — the 11-year rule and the other bits attached to it around the exclusions to that. We would disclose on that. That is what will go on the certificate, and the applicant will share that certificate with the employer. The employer will make a decision based on that. Potentially, offences such as fraud could be filtered off because they are not considered serious and are not on the list of serious offences unless they went to prison for it.

Mr McGlone: It could be serious enough if they w ere going to clean their next employer.

Mr Thomson: Those are the rules of the law that we work within. That is what the scheme requires us to do.

Mr McGlone: I get that.

Ms Jenner: If it is an enhanced check, it will go to the police, and they might decide to raise as additional information that that person has a history. It depends on the type of check.

Mr McGlone: Amanda, do you regard the police check that you mentioned that has not yet been used as a sort of safety valve?

Ms Jenner: We have to operate within our legislation and that is part of what the police can do. They can give additional information in all sorts of ways. Maybe on somebody who was not even charged but they believe that information to be relevant. They have guidelines that they must follow on information.

Mr McGlone: Who shares the information with the police to make sure that they have full knowledge of everything that you have? Is there a crossover mechanism between yourselves and the police whereby there is a point person in each organisation who makes sure that anything that is required of the police is formally requested of the police, and the police formally respond to that?

Ms Jenner: Yes. Files are sent back and forward every day with case references. Sometimes, they are with the police for a period of time until they look into all the information, and we cannot do anything until all that information comes back.

Mr Napier: We have a service level agreement with the police on working through that.

Miss Hargey: Thanks for the update. I want more clarity on two areas that were mentioned, namely delegated powers and the negative resolution procedure. How often has the list been updated in recent years? Why do you want to make the change beyond the explanation given, and under what circumstances might it be necessary to update the list quickly?

Mr Thomson: I do not envisage a situation whereby we would ever have to update that list quickly. If an offence was created today and somebody was charged with it tomorrow, it would be 11 years before it would be filtered. We have that window to create the offence and add it to the list. In all honesty, there is no mad rush. This was just about streamlining the process, doing what we felt was proportionate regarding departmental time and Assembly time in adding new serious offences to the list.

Miss Hargey: OK, no worries. Thank you for that. My other question is about the enhanced applications that would be referred to the PSNI. The report states:

Can you elaborate on what that test is or at least send that information to us?

Mr Thomson: There is a published document on the DOJ website setting out the criteria for the chief officer to consider as part of looking at cases referred to the police. We would send 600 or 700 applications to the police every week. A figure of 25% was mentioned earlier, so that is a routine piece of work for us.

Miss Hargey: Can you just point us to the link or can we get that? Would that be OK?

Mr Napier: Certainly. No problem.

Miss Hargey: Table 10 at paragraph 38 of the report shows that around 97% of referrals and applications sent to the independent reviewer resulted in information being removed. Also, in the vast majority of cases where a review was requested, information was removed. Have lessons been learned about trying to further streamline the process because in the majority of cases some information is being removed? On the one hand, you may argue that that is the point of a review and of having the ability to request removal, but, on the other hand, if the majority of information is removed, what is the point of including it in the first place? Do you have any thoughts on that? In what circumstances is the majority of information removed, as set out in table 10? In what circumstances is information retained?

Mr Napier: Deirdre, I will start off, and then I will pass to Brian. The independent reviewer looks at the nature of what has been applied for and all the rest of it and whether what is on the certificate is particularly relevant to that or whether it has little or no bearing. That will obviously affect the decision on whether a lot of the information is filtered. Part of the whole review mechanism is about looking very specifically at the function of what has been applied for.

Mr Thomson: That is a great point, Deirdre, and we want to bring it out through the review of the list of specified offences. That is why we are creating a new committee. We want to look at the reasons why the independent reviewer would decide not to let the information be disclosed. Typically, it relates to offences that happened when people were young, such as criminal damage, which we spoke about, possession of drugs or assault on police. Those sorts of offences are specified offences, which is why we disclose them. When they go to the independent reviewer, the independent reviewer says, "Look, that is not really relevant for the job that they're going for. It would be appropriate to remove it from the certificate". We want to take those kinds of repeating offences that the independent reviewer is removing and put them to the new committee and say, "Do we want to keep them on the list? Do we want to put conditions against those offences in certain circumstances, or do we want to remove them?". That is the kind of thing that we would like the committee to consider.

Miss Hargey: Has any analysis been done of that, or will the committee do that by looking back at the independent reviewer's decisions? Has analysis been done up to now, or do you want to do that in the time ahead?

Mr Thomson: It is part of what we want to do, absolutely. The independent reviewer is required to produce an annual report. The independent reviewer produced a report — forgive me, I am going back three or four years — that said, "My workload would be reduced if these offences were not filterable", and they mentioned specifically criminal damage, assault on police and possession of drugs.

Miss Hargey: OK. No bother. I have only two more questions, Paul.

The Chairperson (Mr Frew): Go ahead.

Miss Hargey: The report mentions information sought from an Garda Síochána about individuals who have lived in the South in the last five years only. Why five years? What is the rationale for that? In the last reporting period, have any disclosures been made? It is just to get a sense of the numbers.

Mr Thomson: On the rationale behind the five years, I am not sure that I have an answer, Deirdre. The answer is that that has always been the way since AccessNI was created. That is not to say that we would not want to explore it.

To answer your second question, yes, the guards will only share conviction information with us through the PSNI, and that makes its way on to our certificates in that manner.

Miss Hargey: OK. Brilliant. Thank you. I am sorry that these are bit a long-winded.

On the current legal framework for filtering non-serious offences from the record, the Disqualification for Caring for Children Regulations (Northern Ireland) 1996 include:

The Department proposes to remove that. Have you identified any potential unintended consequences or risks that you need to consider if that is removed?

Mr Thomson: No, Deirdre, we have not identified any consequential risks. Our position is that, if somebody has committed a serious offence, they will be charged under that offence, and if it was sufficiently serious, it will be on the list of offences that should not be filtered.

Mr Napier: It will never be filtered.

Mr Thomson: Yes. We struggle with the wording of that clause, because we are not sure what it is meant to capture. We would expect the actual serious offence to be the charge.

Miss Hargey: That is brilliant; thank you very much.

Mr Baker: Apologies, my signal is not great, so, like Deirdre, I will keep my camera off and hope that I do not break up. You touched on this, but I want to keep it to children and young people. The Justice Bill seeks to put on statute the mechanism for the independent review of children's criminal records. However, that does not constitute the putting in place of an application process to wipe the slate clean, as outlined by the UNCRC and the youth justice review. Is that something that the Department has discussed with you? What is your view on the proposal by many children's rights advocates on the ability to apply for a wipe-the-slate-clean policy at 18?

Mr Napier: Danny, we have talked about that when talking about the auto-referral process that we have in place for any offences that happened before 18. We also mentioned the independent reviewer looking at that, even if the offender is over 18. That is part of what the amendment to clause 29A is about — to look at that and, hopefully, try to mitigate it. I do not know if that fully answers your question.

Mr Baker: It does not go as far as a wipe-the-slate-clean policy, which many advocates are calling for.

Mr Napier: It would not, but it would in the sense that it would not be disclosed if that was the consideration of the independent reviewer. Obviously, that would relate to whatever the application was for, rather than a blanket wiping the slate clean. It does not go that far.

Ms Jenner: It would depend on the safeguarding risk and how much of a safeguarding risk there was. That is what the independent reviewer checks.

Mr Napier: That is the balance that we are trying to get to.

Mr Baker: Yes, but do you agree with the opinion of many advocates — it is my opinion as well — that the publicising of a child's record can cause stigmatisation? There will not be a blanket policy for older or minor convictions. Are you not concerned about that for under-18s?

Ms Jenner: It is out of our legislation. Ours is about safeguarding. That is what we are to do. If someone has done something extremely serious, and has a history, it is not for us to decide or make that decision. It is not in our legislation.

Mr Napier: Danny, you will see that the figures show that well over 90% — 97% — of the information is removed.

Mr Thomson: As you will see, Danny, the IR removes a vast majority of the information that is requested to be removed, particularly for people who committed offences when they were under 18. Last year, the IR retained details of two cases. One was for somebody who was 17 and had a caution for theft from an employer. You might argue that it is appropriate that that continues to get disclosed, at least for a short time until the filtering rules, or something, kick in.

Mr Baker: I am just thinking about the 2019 UK Supreme Court judgement that found that the automatic disclosure of out-of-court disposals or other warnings issued to children is a breach of the European Convention on Human Rights.

Mr Thomson: That is, essentially, clause 29 of the Justice Bill, Danny, and where we are trying to put this arrangement with the independent reviewer on a statutory footing so that everything for under-18s would be reviewed prior to disclosure, and only be disclosed when it was appropriate to do so in the interests of safeguarding or public protection.

Mr Baker: Thank you, I appreciate that.

The Chairperson (Mr Frew): I am going to keep you on that train of thought. If the independent reviewer decides to remove a conviction or a non-court disposal, do the police retain the power to keep it on the certificate, or do they have the power to disclose it?

Mr Napier: It will be on their system. That individual will then apply for something else, and it may then become relevant in a different context.

The Chairperson (Mr Frew): The police have not, to date, used the extended power of the enhanced disclosure certificate.

Mr Thomson: They have never used it. As you say, Paul, they could say, "We think this is important and it should go back on the certificate", and they have the power within the Police Act to do that. They have never used it. If we filter it, and the independent reviewer removes it, we let the police know and let them consider whether more information needs to be brought to bear.

The Chairperson (Mr Frew): Whom do you let know in the police? I am sure that it is not a constable or a community police officer.

Mr Thomson: There is a unit in police headquarters, the protected disclosure unit, and we work closely with the guys there.

The Chairperson (Mr Frew): Why do you think they have never disagreed or ever used that power?

Mr Napier: We have very good working relationships with them, so we would not have something come out of left field. We interact daily with the police on all those issues. That is why it has not been used, in the sense that any issues for consideration will be considered as part of the process.

The Chairperson (Mr Frew): Do they use a challenge function? Do they come back to you and ask robustly why you are doing something or removing something, or are they content with and appeased by your rationale every time?

Mr Napier: The interactions are continuous. In fact, it is more of a joint interaction. It is not the case that there are two silos operating separately and then being viewed at the end. There is interaction.

Mr Thomson: There are powers in the Police Act that allow the independent reviewer to obtain information from the police about an offence. The independent reviewer will get all that background information, whether from the police, the Youth Justice Agency (YJA) or the Probation Board, and is making that decision on the back of all the information provided about the offence. The statutory guidance for the independent reviewer is not too dissimilar from the statutory guidance for the police. They are working off the same guidelines, and that suggests to me that one would expect to see some consistency in the decision-making.

The Chairperson (Mr Frew): OK. That is why the police will be on the new committee that is to be set up.

Mr Thomson: Exactly.

The Chairperson (Mr Frew): Before my time, the Committee asked about seeing the terms of reference for the new committee. When does the Department envisage giving us the terms of reference and information on its functionality?

Mr Thomson: I imagine that that will happen very soon after the Justice Bill receives Royal Assent.

The Chairperson (Mr Frew): Are we not able to see the terms of reference before Royal Assent is granted?

Mr Thomson: We have not drafted them yet, but if we get them in place before then, we can absolutely share them beforehand.

The Chairperson (Mr Frew): They are not drafted yet, but you are presuming, given the legislative programme, that the Bill will pass. You will therefore be doing that work before Royal Assent is granted.

Mr Thomson: We will be putting work in place over the next few months to prepare ourselves for that, and for the first sitting of the committee, and that work will include drafting the terms of reference.

The Chairperson (Mr Frew): It would be remiss of me to let you leave without trying to clear up a confusion in my head that was created by the way in which you answered a question. That is not your fault but that of my head. You said that the reason the list of non-filterable offences will be subject to negative resolution is not out of haste but because you just do not want to burden the House with the procedure of having to go through the process that you guys are going through. You talked about having time: an 11-year window. That was introduced in 2014 under section 113A of the Police Act 1997. I am confused, because the list concerns matters that are to be included on a criminal record certificate. The list is of the non-filterable offences. If a new offence were created, you would want it placed on that list immediately or pretty soon thereafter. Where does the 11-year leeway sit?

Mr Thomson: I think that it is the other way around. Perhaps we have confused you, so apologies. If a new offence is created, and perhaps the hate crime Bill will contain some offences that may be suitable for inclusion, we will probably want it to be put on to the non-filterable list. I am talking about serious offences that we would not want to see removed from disclosure certificates. If somebody is convicted of one of those new offences, not long after it is created, we would therefore continue to disclose it for 11 years before the filtering rules would kick in. That gives us a window in which to add it to the list. Personally, I would not want to sit on it for 11 years. I would want to get it done as quickly as we possibly could.

The Chairperson (Mr Frew): Yes, because there will be people applying for disclosure.

Mr Thomson: They would still be safe. The offences on their certificates would still be disclosed until 11 years had passed since the date of conviction.

The Chairperson (Mr Frew): Not if they are not on the list, however.

Mr Thomson: The list is non-filterable.

The Chairperson (Mr Frew): OK.

Mr Thomson: Everything else would be filterable, but those would be non-filterable offences.

The Chairperson (Mr Frew): They would still be on the list, then.

Mr Thomson: It is confusing.

The Chairperson (Mr Frew): Yes, so you understand why I asked. I am glad that someone else thinks so. There is therefore rationale behind my confusion. I just needed to tease that out to be 100% sure that I knew what I was talking about.

I also have something to ask about Deirdre's point. I will bring in Brian in a wee minute. Some 97% of requests for the independent reviewer to look at disclosure were successful. Only four applications were unsuccessful. Is something not being missed there? Either the independent reviewer is just doing things by default or there is an appeasing of people who apply. What strikes me is that numerous people out there who do not ask for a review to be done will then go along with their certificate and perhaps even lose out on a job, while someone who appeals to the independent reviewer will have their disclosure removed. Is there that danger?

Mr Thomson: Yes. There is a statutory position whereby people can ask for the independent reviewer to review their standard or enhanced disclosure. I think that, last year, 160 or 190 people — I cannot remember the exact number — asked for a review to happen, and the independent reviewer removed the information in 97% of the cases. We are not hiding that information. It states on the back of the disclosure certificate that, if they are not happy with it or think that it is disproportionate —

Mr Napier: There were 160 appeals, and the information was removed in 97·5% of cases.

Mr Thomson: — people can ask for it to be reviewed. It is on the AccessNI website and on the Department's website. The process is there for people to use.

Ms Jenner: There is automatic review as well, whereby it will be sent automatically if the person is under the age of 18. It does not even have to be requested.

The Chairperson (Mr Frew): That percentage is for 2024-25 only, but I suspect that it is consistent across the years.

Mr Thomson: I was going to say that it is unique to Northern Ireland, but Scotland introduced a similar arrangement from April this year, whereby the independent reviewer will review the proportionality of ongoing disclosure of information.

The Chairperson (Mr Frew): You can imagine a conversation in somebody's living room, where one person says, "I have got this certificate, and this offence is on it", to which another person will reply, "Just get it reviewed, and it will be taken off".

Mr Thomson: The independent reviewer might take it off, or they might decide to retain it if it were a serious offence that resulted in a custodial sentence. If it is more than 11 years old, we will have removed it anyway. It is only the more serious stuff and the most recent stuff that remains. The independent reviewer might not remove stuff if it is very recent, because, for example, the offence might demonstrate a propensity for repeat offending.

Ms Ferguson: It is not just for custodial sentences.

Mr Thomson: No.

Ms Ferguson: I have dealt with a few cases in which there was not even a sentence handed down, because the case had been withdrawn, but the information was pertinent to the job that someone had applied for, so it remained on their certificate.

Mr Thomson: That would have been police information, Ciara, as opposed to conviction information.

Ms Ferguson: Yes.

The Chairperson (Mr Frew): In the proposed amendments under proposed new clause 29A, you substitute "the Department" for "the Secretary of State". I take it that that is just a case of law catching up with the devolution of policing and justice to here.

Mr Thomson: Exactly, yes. The legislation currently refers to the Secretary of State, and we think that it is tidier to talk about the Department.

The Chairperson (Mr Frew): OK.

Mr Kingston: Paragraph 42 of the AccessNI performance and activity report refers to cases in which people have applied for an enhanced check who were on a UK list of people barred from working with children and young people. It states that there were nine such cases. In four cases, applicants were unaware of their barring status, which is perhaps surprising, and that a number of police investigations remain ongoing. In that circumstance, is AccessNI required, in the interests of public safety, to report to the police if someone who is on a barred list has applied to work with children?

Mr Napier: It is a criminal offence to do so in the first instance, so —.

Mr Thomson: The Disclosure and Barring Service (DBS) in Liverpool looks after the barring arrangements in Northern Ireland as well. If we find that somebody is barred but has tried to work in a regulated activity, we will produce a small evidence pack and send it off to the DBS, and it will liaise with local police about following up with a prosecution. Yes, some people do say, "I did not know that I was barred". That is not great. It is based on things such as DBS's notifying people by letter and using recorded delivery, which fell down a wee bit during COVID when there were no hand-to-hand deliveries, for example. The DBS is doing what it can to tighten things up. It knows that it is not a great position for it to be in if somebody can be barred yet there is no consequence.

Mr Kingston: I am seeking an assurance that that is a criminal offence and that it will be reported to the police.

Mr Napier: It is a criminal offence under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.

The Chairperson (Mr Frew): Thank you. There are no further questions from Committee members. That was a pretty long session, and we thank you for your time and for your answers. Thank you very much, John Paul, Brian and Amanda.

Mr Napier: Thank you.