Official Report: Minutes of Evidence

The Chairperson (Mr Frew): The witnesses who are providing evidence are Dr Veronica Holland, deputy director of the rehabilitation and reducing offending division, and Jenny McAlarney, policy official in the reducing offending division. I advise members that Veronica and Jenny are in attendance to speak to Part 2 of the Bill on children's bail and custody and the planned amendment on restorative justice. Other officials will be in attendance next week to speak to other aspects of the Bill and the remaining amendments. I suggest that the Committee commences with considering Part 2 and then focuses on restorative justice separately, once members have concluded their questions on children. As usual, I ask members to indicate to the Clerk if they wish to ask a question. Please keep questions as brief and focused as possible. This is not the time for opinions; it is the time for scrutiny and questions.

Without further ado, I welcome the officials to the meeting. Veronica and Jenny, you are very welcome to the Committee. I invite you to make an opening statement.

Dr Veronica Holland (Department of Justice): Thank you, Chair. It was very helpful to give us that demarcation between dealing with the youth justice provisions first and then turning to the restorative justice aspects. I am more than happy to set it out that way. Obviously, we are happy to answer any questions from members on both those aspects.

First, I will give a high-level overview on the youth justice provisions, the overarching aim of which is to enhance the Department's compliance with articles 37(b) and 37(c) of the United Nations Convention on the Rights of the Child (UNCRC). Obviously, a range of provisions in the Bill deal with issues that are associated with that. I will just give a quick overview on what the provisions deal with, and then we can deal with any queries on those provisions.

Clauses 4 to 8 amend existing legislation governing both police bail and court bail for children, and they address issues that relate to the remand of children in custody. Those amendments are being made to ensure that custody for children is a measure of last resort. In summary, they aim to achieve that through the following means. They will strengthen the existing presumption of bail for children through the introduction of a statutory right to bail. They will also introduce unconditional bail as standard. Associated with that will be a requirement that any conditions that are applied to bail should be proportionate and necessary. There will also be the introduction of two tests that must be met before a child is remanded into custody. The first of those tests is the likelihood that the child will receive a custodial sentence for the offence and it is very likely that there will be a custodial sentence associated with it. The second test is that, even if that first test is met, it is deemed necessary to remand the child in custody to prevent one or more of the following: failure to surrender to custody; another offence being committed; and interference with witnesses or causing serious risk to public order. As I say, there are really two strands; first, that it is likely that there will be a custodial sentence, and, secondly, even if that test is met, it is considered whether it is necessary to remand the child for those particular reasons.

The provisions also introduce considerations that must be taken into account by either the police or the courts before making decisions on bail, and those include the child's best interests; their age, maturity and understanding; the nature and seriousness of the offences that they are being considered for; and any previous offending history. Again, it is very much about looking in the round at the particular circumstances of the case and taking into account any of the factors that would impact on the decision as to whether remand would be appropriate in those cases.

Clause 7 provides greater clarity on the options that are available to the police for dealing with a child who has breached or is likely to breach their bail conditions, and, depending on the seriousness of the breach, it can allow bail to continue and for a record of that breach to be provided to the court at the next scheduled hearing. Again, there is very much a focus on trying to ensure that going into a custodial environment is a last resort and that there is adequate provision when it comes to bail for those individuals.

Members will also have heard during evidence sessions that children have, on occasion, been held on remand rather than bailed due to a lack of suitable accommodation in the community. Clause 8 would prevent the police and courts from retaining a child in custody solely due to a lack of accommodation where all other considerations for the granting of bail have been met. Unlike the remaining youth justice provisions, which will be commenced on Royal Assent, clause 8 will not be commenced until there is suitable alternative accommodation provision in the community. We continue to work with colleagues in Health on that matter, given that it is the lead Department responsible for the provision of that accommodation.

Clauses 9 to 19 amend the current custodial sentencing framework for children, and, again, that is in order to enhance the Department's compliance with article 37(c) of the United Nations Convention on the Rights of the Child. That concerns the separation of children from adults when they are in custody. It is about ensuring that there is a child-specific focus in the environment in which they are detained. While an administrative workaround for that has been in place since 2012 to ensure that children are held in a separate custodial environment, the new provisions will place that in statute and ensure that, when a child is held in custody, they will be detained in a juvenile justice centre (JJC) and never in an adult prison. They will not be held in a young offenders' centre (YOC).

It is also our intention that the new provisions will meet a secondary policy aim, which is to reinforce the principle that all under-18s are children and should be subject to child-specific sentencing and accommodation arrangements. Again, that is very much in line with the provisions of the UNCRC. To that end, a new custodial order is being introduced through the Bill, and that will replace the existing juvenile justice centre order and also the order of detention in a young offenders' centre. That is commonly referred to as a YOC order, and that will become the new main sentencing option for young people under the age of 18. The characteristics of that new youth custody and supervision order (YCSO) largely reflect the current provisions in the juvenile justice centre order in that there will be a two-part split between custody and the community, and, in the majority of cases, the duration of that new order will be a minimum of six months through to a maximum of two years. As with the juvenile justice centre order, only one of the new orders can be in place at any one time.

I will advise members on some of the key differences between that and the order that is currently in place. The new order will apply only to those aged 14 and above. For those aged 16 and over, the judiciary will be able to extend the length of the order by a further two years. The purpose of that is very much to reflect the removal of 16- and 17-year-olds from the scope of the YOC orders, which can be applied currently for up to four years. There will be provision made in relation to 16- and 17-year-olds and, I suppose, to continue with similar provisions for that age category.

Another difference from the current provision is the split between custody and community provision. There is greater flexibility in the new order. Instead of there having to be a 50:50 split, as it is for the current order, the judiciary can decide to allow for a longer period under supervision in the community. The conditions associated with that are that the custody period cannot be any less than six months or any more than 50% of the order —. Sorry, it cannot be less than three months or more than half the length of the order. Apologies. A breach of the supervision element of the new order can result in the young person being sent back to custody in order to serve the remainder of the order, as opposed to the current position, where the maximum custody period is for 30 days.

There are a few other things that we want to highlight. Where a child has committed a very serious offence that would necessitate a sentence beyond the duration of that new order, there is a range of other custodial sentencing options that would remain available to the judiciary. It is not that there are any kinds of limitations or restrictions on the ability to deal with individuals who are of a young age and who have committed a very serious offence. Obviously, the provisions will continue to apply to all children over the age of criminal responsibility, whatever level that may be, once the Bill has gone through the Assembly process.

I will now turn to the youth justice provisions. Further custody-related issues are addressed in Part 2 of the Justice Bill, including the removal from the statute book of custody care orders, which were intended for 10- to 13-year-olds. Those provisions have never been commenced since the legislation was introduced 23 years ago. There are provisions that require the court to take account of time spent by children on remand, both when considering extending the remand period and when determining an appropriate custodial sentence period upon a finding of guilt. Provisions have also been made in relation to transitional arrangements, which provide clarity and ensure continuity of custody provision at the commencement of those provisions.

More generally, obviously, we have followed with interest the Committee Stage of the Bill in relation to the youth justice provisions. We have been encouraged by, and have found it helpful, to see the level of support that has been demonstrated by stakeholders across the board for the youth justice provisions. While some issues have been raised, we hope that the Department has addressed the majority of those to Committee members' satisfaction through the previous written submissions that we have provided during this stage of the Bill's progress. We are aware there is a small number of outstanding issues, which have been sent through for the Department to consider. We are in the process of responding to those, and we hope to get something to the Committee fairly soon. We understand that there will be a composite response that will deal with the range of provisions and queries on the Bill more generally, and the youth justice provisions will be an aspect of that. It is hoped that that response will come back to the Committee early in the new year.

We are more than happy to answer any queries that Committee members may have in relation to those provisions or to provide any further clarification.

The Chairperson (Mr Frew): OK, Veronica, thank you very much for that presentation, which was very helpful. I will kick off by looking at some of the clauses in the Bill. Clause 4, entitled "Duties of custody officer after charge", amends article 39 of the Police and Criminal Evidence (Northern Ireland) Order 1989 thus:

How do you envisage someone measuring that maturity? What does that look like when it is contained in a Bill?

Dr Holland: It will be for police officers to take account of the individual circumstances of the case. To our mind, that is something that they consider as part and parcel of their daily operations at the moment. The intention is also that there will be guidance associated with the provisions in the Bill more generally. We will continue to have discussions with the police in relation to the operationalisation of those provisions and how the police may best wish to consider that. Generally speaking, however, we are of the view that the police will already be taking account of those aspects as part of their work, and it is about reflecting that in statute.

Ms Jenny McAlarney (Department of Justice): We have had talks with the police, particularly in relation to that clause and how they would assess maturity. Based on those discussions, the police are content that they would have the operational expertise in that regard, without detailed guidance. The police understand that it is something that they do generally, as part of their normal processes. They will look at information that comes in about the child from their parents as well about the child's maturity and "streetwise-ness", if you know what I mean.

The Chairperson (Mr Frew): Does mental age capacity come into it?

Ms McAlarney: It does not come into that particular area; it would come under the wider needs, such as age, maturity or special needs or learning difficulties that needed to be taken into account. The police will only be aware of that if someone makes them aware. We do not expect the police to determine that from a brief interview with the child. It is for an appropriate adult or the child's parents to make the police aware.

Dr Holland: As part of the general deliberations, the police will assess the young person's capacity and ability to understand when they come into their care. There are also provisions, such as the registered intermediaries, to be used when individuals have a limited understanding, learning difficulties or another aspect that may impact on that. There are already aspects in the system that will assist mental capacity.

The Chairperson (Mr Frew): We are creating a new provision, 48ZA "bail after arrest, juveniles". There is a list in subsection 2:

It lists a whole lot of criteria. The wording is similar to the existing article 39 in the legislation, and we have basically replicated the wording into the new Bill. Is it just to tidy up the wording, or does it add something?

Ms McAlarney: It adds something because it relates to the conditions of bail in the section. It is for when the conditions of bail are being considered, and not just the decision to release the child on bail; all the other things should be considered. It replicates clause 6, which is about court bail, and the police and courts will make the same decisions based on the same considerations. We need to make sure there is parity between the court and the police.

The Chairperson (Mr Frew): Staying on page 19, clause 5 entitled "Police bail after arrest" adds new terminology — the Bill keeps referring to "he" — so it states:

And:

Clause 6 inserts new condition 10F and new clause 10G, and it talks about the child's release:

Everywhere you add the phrase "serious threat to public order", does it mean the child causing a threat to public order or is it the community causing that threat?

Ms McAlarney: The legislation is not prescriptive and, therefore, it can apply to either. The reason we included it was that there was a report on bail carried out by the Law Commission in 2012, and it recognised it as the fourth ground for refusing bail. It was also endorsed by the European Court of Human Rights (ECHR) as a fourth ground for the potential refusal of bail or applying bail conditions. Therefore, we have taken this chance to replicate that and include it in this legislation. However, it can apply to either scenario. It could apply to a case where the nature of the offence that the child has committed is so serious that there could be riots. We have seen in the past where a release could cause a riot. It could also be that the child could be involved in serious public order offending. It should only be applied for court bail if the first test for remand is met; it has to be a serious offence that will result in a custodial sentence for the child, and it cannot be applied on its own.

The Chairperson (Mr Frew): Staying on clause 6, and the new article 10I on the record of decisions concerning bail. Paragraph (2)(c) states:

How will the child know his rights on a bail decision?

Ms McAlarney: That is a good point. Obviously, we will issue guidance, but we will also engage with the legal profession. The child's advocate or solicitor will be able to make them aware of their rights. We have engaged with a number of the youth justice and children's sector organisations, and those organisations will receive a copy of the guidance. Anyone who is representing a child will be able to advise them of their rights.

The Chairperson (Mr Frew): OK. Clause 8 states:

We all know why that is in the clause from the perspective of human rights, but will you express to the Committee how big a problem that has been?

Dr Holland: The focus behind that provision is ensuring that individuals are not held solely because there is an accommodation issue. I suppose that there was a slightly different position when that provision was drafted and included in the Bill, in that work was being undertaken on the joint campus at that time. Work is being progressed in relation to the Ray Jones review, and a range of discussions and considerations are going on with Health to ensure that accommodation can be provided. That is the rationale behind the provisions not being commenced upon Royal Assent. My understanding is that the numbers are not huge.

Ms McAlarney: No. As members will know, the numbers in the Woodlands Juvenile Justice Centre have decreased significantly in recent years. Today, for example, there are five children in the JJC. I think that one was sentenced, and three are on remand, so they are very small numbers. Unfortunately, however, there are cases of children being held and their bail not being perfected because there is a lack of suitable accommodation in the community. That could be because the dispute happened in the family home, so the police will say that it is not safe and will not approve that as the bail address.

Depending on how complex a child's needs are and their offending, it can take a while for accommodation to be sorted out. Our view is that a child should never be held in custody if lack of accommodation in the community is the only reason, rather than the serious nature of their offending. That is why that clause is in there. As Veronica said, we had hoped that that would be addressed through the joint campus programme, because it was looking at satellite provision in the community and other alternatives to bail. As that programme has been stood down, however, we do not want to commence that clause yet. We do not want the judiciary to be in a position of having to release a child who potentially has nowhere to go. There is a safety aspect to that.

We were working with Health on a number of groups and areas, and that issue is raised constantly. I know that Health is under a lot of pressure, particularly social services, when it comes to placing children and with children in care. We are working with social services to identify alternative accommodation for those children. Once we are happy that there is suitable provision, we would like to commence that clause.

Dr Holland: We were also keen that the provision was not lost, given that the work is ongoing. We want to try to ensure that there are further discussions with Health and some form of resolution in relation to that provision as soon as possible. Equally, we are conscious that it is not possible to have that provision commenced at the moment but that it will be at a future date.

The Chairperson (Mr Frew): There is no commencement clause for clause 8 in the Bill.

Ms McAlarney: It is the only one of all the provisions that will be commenced by order. The rest will commence upon Royal Assent — they will commence two months after Royal Assent.

The Chairperson (Mr Frew): OK. Does it say that in the Bill?

Ms McAlarney: It says that where the commencement provisions are dealt with, which, I think, is quite late on in the Bill.

The Chairperson (Mr Frew): It is maybe at the back of the Bill, is it?

Dr Holland: Yes, the provisions for the commencement would be at the tail end of the Bill.

The Chairperson (Mr Frew): OK.

Dr Holland: They usually list those that are to be commenced on Royal Assent or the ones that will, you know —. That is how it will have been dealt with. It is possibly not obvious from the commencement provision that that is how that is to be dealt with, but, as Jenny said, the intention is that there would be a commencement order for that. We will advise the Committee about that in due course, ahead of the provision being commenced.

The Chairperson (Mr Frew): Thank you very much for that clarification. That is very helpful.

On the youth custody and supervision orders, I heard what you said about the custody care orders not being enacted. Are you sure that the new flexibility that is being created with the youth custody and supervision orders is the right one? Can you explain to the Committee what "supervision", as opposed to "custody", means in a practical sense?

Ms McAlarney: Given that we are talking about children in this case, supervision is generally carried out by the Youth Justice Agency (YJA). That means that the young person will have to report in. If the sentence was three months in custody and three months on supervision, they may be required to comply with any of the requirements of the order. Those would be set out at the time when the case was sentenced, so they will know what the requirements will be. Those requirements could be anything from meeting the youth justice worker once a week to certain conditions around having to attend school or to be engaged in certain activities. Obviously, there would be consequences if those conditions were to be breached.

The Chairperson (Mr Frew): Does supervision always entail someone wearing a monitoring tag?

Ms McAlarney: No, that is very rare.

The Chairperson (Mr Frew): Rarely?

Ms McAlarney: Very rarely, I would say.

Dr Holland: Obviously, electronic monitoring could be part of the conditions if it were deemed necessary. As you say, it is very rarely used with children.

The Chairperson (Mr Frew): It would be part of the supervision terms, but it is not necessarily used with children.

Ms McAlarney: It is very rarely used with children.

The Chairperson (Mr Frew): My final question is about youth custody and supervision orders, which Veronica mentioned. Clause 12, which inserts new article 38B says:

Paragraph 3 of that article says:

It then lists two pieces of legislation, the Firearms (Northern Ireland) Order 2004 and schedule 2 to the Violent Crime Reduction Act 2006. Will you explain why those two pieces of legislation are there?

Dr Holland: As we noted in our opening remarks, the relevant period is between three months and two years. For 16- and 17-year-olds, it can be up to four years. Those particular offences are covered, as they are some of the more serious offences. Jenny, my understanding is that that reflects current provisions in the Criminal Justice (Children) (Northern Ireland) Order 1998.

Ms McAlarney: Yes. We will set that out, because, as Veronica said, under that order, a 16-year-old can be sentenced to a YOC order, which can be for up to four years. That gives the judiciary the ability to sentence a young person a YOC order for up to a period of four years. However, because we are removing 16- and 17-year-olds from the scope of young offenders' centre orders, they will only then be able to be sentenced to the new YCSO for less serious offences. Certain offences, such as firearms offences and others that are mentioned, have a minimum tariff of three years for a person aged 16 and above. That is why we had to include that. There needs to be scope to allow a sentence of up to four years for certain offences.

The Chairperson (Mr Frew): But it is already existing practice.

Ms McAlarney: Yes.

The Chairperson (Mr Frew): Is there legislation that you toyed with putting in, or is it basically a read across?

Ms McAlarney: Those were the only ones that we identified as having a minimum tariff of three years for 16- to 18-year-olds. That is why we included those. There is also scope to add similar offences after the legislation is introduced.

The Chairperson (Mr Frew): Thank you very much for answering those questions. I will open up the discussion to members.

Ms Sheerin: Thank you, both, very much for coming in. I want to go back to one of the Chair's questions, which was on clauses 5 and 6. There is a response in our pack from the Department on some of it, but I wonder whether you can provide clarity. Concerns were expressed by the Children's Law Centre (CLC) around some of the wording on causing a "threat to public order" or on individuals with whom a person is involved causing a threat. "Causing a threat" is open to interpretation. Is there a fear that someone who has been coerced into criminality is at risk?

Dr Holland: As Jenny mentioned, those provisions are intended to deal with those most serious offences and with situations where there is a risk of an adverse response from the community that would cause public disorder in relation to the incident that occurred or a risk of the child themselves causing public disorder. As part of looking at the individual circumstances of the case, a prosecutor will want to take into account whether the individual has been coerced into undertaking the offence. The focus of those provisions is intended to be the most serious offences where there is risk relating to community reaction or to what the individual who is charged with the offence might undertake.

Ms Sheerin: Is there a risk that there is limited protection for somebody who has been exploited or coerced?

Ms McAlarney: I do not think so. One thing about having that provision in the Bill is that, when it comes to police bail, it allows the police to put in bail conditions that might protect the young person. It could be that they might have to move to a different bail address, such as, for example, one that is outside the area where the threat may have occurred or may be more prevalent. That is the same for court bail.

I do not think that there is any risk from these. The whole intention of our provisions is to keep children out of custody where we can. We are not doing anything here that would cause it to be more likely for a child to end up in custody because of the actions of themselves or others. Everything is aimed at keeping children out of custody wherever possible and protecting them as well.

Ms Sheerin: Are there human rights implications for a child who has been coerced and is further criminalised as a result of that?

Ms McAlarney: I do not think that that could be as a result of our provisions. No, there would not be.

Ms Sheerin: Has there been engagement with the Human Rights Commission?

Ms McAlarney: The Bill was processed and screened for any impact on human rights, and nothing was identified.

Ms Sheerin: On some of the concerns that are included in our pack from the Children's Law Centre, the response from the Department seems to be that most of the provisions are in existing legislation, as opposed to a rationale that proves their worth. Sorry, I am coming to this as a new member.

Ms McAlarney: I think that you are talking more about the provisions that are relevant when they are considering a person's right to bail or conditions and are looking at the nature of the person and their community ties. Is that what you are talking about?

Ms Sheerin: Yes. In the way that I read that, the character, associations and community ties will surely, an awful lot of the time, be dependent. Somebody who has been coerced into criminality or committing an offence will have those community ties.

Ms McAlarney: I suppose that they are just considerations. As the Chair said, they are already in article 39 of PACE. We have replicated them here because those are things that the police will take account of when they consider the wider picture around the child.

Ms Sheerin: Yes, that is exactly my concern. They are already in article 39 of PACE. As I understand it, the purpose of the Bill is to update and improve, moving away from the PACE guidance and allowing the police a more compassionate or human rights compliant approach.

Ms McAlarney: I do not think that taking those things into consideration is necessarily a bad thing. It could be for the benefit of the child as well.

Ms Sheerin: OK. It is open to interpretation, is it?

Ms McAlarney: Yes, it could be.

Dr Holland: In the way that the provisions are brought forward and structured, the focus is very much on trying to ensure that as wide a range of factors can be taken into account as possible, reflecting the individual circumstances of the case and anything that is pertinent to the decision that the police would reach on that individual case. As Jenny said, the focus in the provisions that we are bringing forward is very much on trying to ensure that children are not going into custody, that they are being provided with bail and that we can take account of as many of those factors as possible. The provisions give increased flexibility and scope in what can be looked at.

Ms McAlarney: That is why we have added in the age, maturity and needs of the child, because that is something that we are asking the police to consider. They probably do it already, but it just to —.

Ms Sheerin: That is the worry: it is open to interpretation in the way that you read it. For me, looking at a young person who comes from a community or has community ties to armed groups, paramilitaries or whatever the case may be, my immediate assumption would be that that child is vulnerable and has probably been exploited. My worry is about how that would be looked at and about the wording around their risk. It seems to assume that, because of those ties, there is a risk. I raise that point to clarify that. As I pointed out, the response to the Children's Law Centre seemed to be very much that it is the status quo.

Ms McAlarney: Obviously, we are adding it in relation to bail conditions in PACE. We are thinking that the judge could take it into consideration and put in place protective measures as well —

Ms Sheerin: That would be the hope.

Ms McAlarney: — to keep the child from maybe encountering those people when they are out on bail and to keep them away from those factors rather than anything else.

Ms Sheerin: Thank you.

Mr Kingston: Thank you for the information. Looking at clause 8 again, I am trying to understand its practical outworkings. It states that the custody officer:

Those are circumstances in which a juvenile is a suspect or has been charged with an offence, but the provision applies because they say that they are homeless or they do not have what is deemed to be a place of safety. Those might be circumstances in which the custody sergeant or whoever is thinking in the best interests of the child. It could be that the child wants to stay in accommodation, being kept in remand. The wording is that the custody officer:

Presumably, that is where the juvenile wants to leave custody, or their legal representative wants them to leave custody.

I presume that there is a certain duty of care on the justice system if someone has been arrested and there is concern for their safety because of the allegation that has been made about them or concern about their home circumstances or where they are genuinely homeless. Does that clause mean that the responsibility falls back on the justice system or does it fall back on other statutory services, including social services? The consequences do not have to be the creation of another form of accommodation that is not custody but is a place of safety. One can imagine an emergency situation late at night where it might be in the best interests of the person to be kept overnight. It is about knowing where the duty of care responsibility ends up.

Dr Holland: Ultimately, we are keen that, when the provisions are in place, we will not have a situation where individuals are being detained in a custodial environment when they should be released with provision made for them in other accommodation. A key element of that, as we said, will be ongoing discussions with Health on ensuring that there is appropriate accommodation for those individuals to go into in order that the provision can be put in place and commenced. We are conscious that, at the moment, we have not reached the point where effective provision is in place for appropriate and adequate accommodation to ensure that there is that duty of care for that young person and to ensure that a place of safety in adequate accommodation is provided. That is, in part, why the provisions are not being commenced at this point. It is so that we can ensure that, when they are commenced, the necessary arrangements are in place so that individuals are not being kept in custody where there is no justice reason for them to be retained in a custodial environment.

Mr Kingston: I will give a scenario. The individual lives in the family home, and an incident has occurred there where they are the suspect in a crime. There is anger in the situation, which means that it is not safe for them to be returned there. It is late at night, and somewhere needs to be found for them to go. It might be a case of letting them stay in custody overnight until things are sorted out. Where does the responsibility end up? There is a need to find somewhere for them. Does it end up with social services?

Dr Holland: Ultimately, it is for Health to source that accommodation and have appropriate accommodation for them to go to.

Mr Kingston: I understand the idea for them not to be in detention if it is deemed that they are eligible for bail. I think that, at times, there may be an issue of duty of care and of safety concern for the individual.

Dr Holland: That will be paramount in the deliberations on ensuring that appropriate provision is in place for that accommodation. We want to ensure that, ultimately, individuals are not being held in custody, as you said, but that appropriate provision is made on safe and secure accommodation. There will be instances where, as you said, that will have to be provided at quite short notice late at night. Those discussions have not yet been bottomed out and appropriate provision has not yet been agreed with Health colleagues, and that is why the provision is not being commenced at this point.

Mr Kingston: My final thought is that, if legal processes are working and a solicitor gets permission for the person to be released at 2.30 am, it is not better to let them carry on if they are sleeping in a detention cell and to arrange somewhere else in the morning? It should be that, when the bail decision is triggered, there is some practical outworking of that, rather than there being a statutory offence created if the juvenile is not released.

Mr Baker: I will start with an easy question on how the word "juvenile" is used in the Bill. Can that be replaced with "child"?

Ms McAlarney: To be honest, our preference would be to have the wording as "child" rather than "juvenile". The only reason for "juvenile" being used in the provisions, particularly in clauses 4 and 5, is that we have to replicate the wording that is already used in the original legislation. We are inserting our provisions into the PACE legislation, and, throughout PACE, the word "juvenile" is used consistently, so we could not then have "child" interspersed amongst that. You have to go with the language that has been used in the originating legislation. In the Criminal Justice (Northern Ireland) Order 1998, "child" is used throughout, so the provisions in the Bill that will be going into the 1998 Order will say "child". The provisions that are going into PACE will say "juvenile".

Mr Baker: Thank you. My next question was touched on earlier. Given that the previous legislation refers to the best interests of children, could the Justice Bill include a new clause referring to article 3 of the UNCRC? Do you think that, in general, the Justice Bill could be strengthened by referring directly to article 37 of the UNCRC?

Dr Holland: We as a Department would not have an issue with such a provision being included. We have had conversations with the Office of the Legislative Counsel on the inclusion of a reference to the best interests of children, and I think that it was of the view that, given the nature of the provisions that are currently there and other existing legislative measures that refer to the best interests of the child, it was not necessary for the Bill to make reference to that. Jenny, am I right in saying that it is not that we would have any objections to that but that the view was that, legislatively, it was unnecessary?

Ms McAlarney: When we were drafting the instructions, we wanted it to be included, but we were more or less — not told that we could not — quite strongly advised against it, because article 53 in the 2002 Act basically requires that, wherever any bodies or functions are exercising anything in relation to the youth justice system, they do so with the best interests of the child as a primary aim. We were told that that was an overarching principle across the youth justice system and that, therefore, it would be duplication to have it again in these provisions. We have no objection. It was something that we wanted originally.

Mr Baker: That is very useful. That is all from me. Thank you.

Mr McGlone: Thank you for the presentation. I want to come back to the issue of children in custody not having a safe address to which to be released on bail. Can you talk me through the existing arrangements? What happens currently in those instances? Do the police liaise with social services and hope that a location becomes available? If they are not at risk and are not a risk to others or to themselves, you do not want them going back into custody.

Ms McAlarney: Police bail is less of an issue, because it is generally only for an overnighter. The police will try their best to get the child accommodated outside of custody, but, if they cannot, they will, generally, bring the child to the Juvenile Justice Centre, which is a designated place of safety, or they may, on occasion, depending on the distance and the time of night, hold them overnight in a police cell. When they are in the Juvenile Justice Centre, if bail is agreed but cannot be perfected because of a lack of suitable accommodation, we know that the Youth Justice Agency and its staff work very closely with social services and do everything that they can to try to identify a suitable address within the shortest possible time. That can be more difficult for some children than for others. The complex needs of the children who are currently in the Juvenile Justice Centre mean that it is very difficult to find a suitable placement as soon as they would like, but every effort is made, and social services really do try as hard as they can to get something sorted. The Youth Justice Agency works very closely with social services and with the families to try to ensure that bail can be perfected as soon as possible.

Mr McGlone: Thank you. You said that they make every effort. What is the range of options? Can you give us any insight into that?

Ms McAlarney: That is an area that is more for the Department of Health. I am not sure of the options that are available to the Department of Health and social services. I imagine that family members would be approached first, if the child cannot return to the family home. If the child is not already in care, an emergency fostering arrangement may be looked at. There is a bail fostering scheme in the Southern Health and Social Care Trust area, in which the fostering family takes children who are on bail for the time until their case is heard or they can return to the family home. In extreme cases, if they are not a looked-after child, they may become a looked-after child, and they could be sent to a residential home.

Mr McGlone: I am probably taking you into the remit of the Department of Health, but is the Southern Trust the only trust with that type of arrangement for children?

Ms McAlarney: It is at the minute. The Southern Trust piloted the bail fostering scheme, and it has mainstreamed it, because it has been successful. A couple fostered five children during the 18 months of the pilot scheme, and that worked out well. The Southern Trust is now mainstreaming that scheme. We are in discussions with colleagues in the Department of Health to extend the pilot beyond the Southern Trust. Unfortunately, the foster parent capacity in the remaining trusts is not as good; they are struggling. We are looking to identify another trust to be the next one in line for the scheme to be piloted there for a while, and then, hopefully, we would get it extended across the region eventually.

Mr McGlone: Do you find that there are increased numbers of children in those situations who have that type of need?

Ms McAlarney: The numbers in the JJC have gone down a lot, and they are very small. Unfortunately, that means that the children who are there have more complex needs than was the case 15 or 20 years ago. It can be harder to find accommodation for them if there are issues. The numbers have not increased, but the complexity of the needs is greater.

Mr McGlone: OK. Thanks very much indeed.

Ms Ferguson: I have a specific concern about accommodation, because that provision will be commenced through an order. You mentioned that the Department of Health had a group, but it was stepped down, and that is delaying the ability to look intensely at ensuring that we have the appropriate accommodation. What was the name of that group? Secondly, could the legislation be an opportunity for it to be more clearly defined? There could be a statutory duty for the bail address and for the court to be updated by the relevant health trust on the progress in providing bail accommodation by trust personnel attending the court. That would definitely give children greater protection when the provision is implemented.

Dr Holland: The earlier piece of work was being taken forward and the provision was originally included in an earlier version of the Justice Bill because work was being taken forward on the joint campus to bring together the Health and Justice aspects. That work was stood down, and that programme of work was not necessarily being progressed to the same extent. There are obviously ongoing discussions on the outworkings of the Ray Jones review, and we continue to have conversations and discussions with Health colleagues on how best it can be progressed. Obviously, from a Justice perspective, we are keen to see those provisions be introduced as soon as possible, but we are conscious that we are dependent on the Health aspect and the provision of the necessary accommodation in order for that work to be taken forward.

Jenny, was there a particular group looking at that? Do you know the name of the group?

Ms McAlarney: No. It would have just been the regional care and justice campus programme, but a subsection of the programme was looking at alternative provision in the community, satellite provision and alternatives to bail. It did not progress very far because of the difficulties. We are talking about small numbers of children, and it means trying to find regional provision that will be in place 24 hours a day, just in case it is needed. At the minute, because of the pressures on the health sector and on our budget, there are no easy solutions. Therefore, that work has not really progressed.

Dr Holland: As you said, the numbers that we are looking at are small. The figures for today are that five are being held in the Juvenile Justice Centre; small numbers are being dealt with.

On the query about health staff being available in court, it is probably not something that we, as officials in the Department of Justice, would have a say in. I am not sure how practical or feasible it may be from a resourcing perspective for Health colleagues or whether it was raised with them at an earlier point in discussions. My sense is that they likely would not consider it to be a feasible approach.

Ms McAlarney: Given the pressures on social services, you would probably face a kickback from them on that. The YJA has a bail support scheme that is offered to children who are held in the Juvenile Justice Centre and are granted bail but are having problems. They work very closely with the Department of Health as well in order to resolve that. It is not a lack of willingness or effort on the part of the Department of Health or social services to find places. It is a wider issue. I am not sure that having somebody in the court would help, because they are doing everything that they can. It is not a lack of effort on their part: it is probably resourcing and capacity issues.

Ms Ferguson: We all know clearly that there is a huge capacity issue in housing and accommodation in general. We have the provision in the Bill, but how realistic is it? Is there a timescale for implementation? That is my concern: it is on paper, but it means nothing unless there is a concerted effort and a task force is set up. I get it about the resources. However, you say that it is a small number, so it is a unique project, with unique resources for a small number of young people. It is about trying to ensure that our most vulnerable children should not be on remand and should have suitable accommodation. It is quite urgent. We should take a children's rights approach to it.

I would love to get further detail. What are your thoughts? Will a working group be set up? Is there one already? Where is its focus? What is the resource, if it is required? We need more detail on the urgency of it. Likewise, when is the Minister likely — in all likelihood ever — to be able to implement it?

Dr Holland: For the provisions that are currently in place, a working group has not been set up as such. There are ongoing discussions and engagement between the officials in both Departments. There is also engagement with officials in the Youth Justice Agency, as well as with our counterparts on the Health side. Certainly we, as a Department, are keen to see it introduced at the earliest possible opportunity. It is never a good situation to have legislation on the statute books that has not been commenced. There certainly will be a drive and focus from a Department of Justice perspective to ensure that those lines of communication remain open with colleagues in the Department of Health in order to try to get a resolution on it.

Ms Ferguson: Have you had any indication from the Department of Health on what a timeline would be for the Minister?

Ms McAlarney: We do not have any, but we have been discussing with them the bail fostering scheme and whether we can get it extended. However, it will probably be on a slower, trust-by-trust basis until it is operational throughout Northern Ireland. There is that possibility. There is also a piece of work ongoing, with a task and finish group set up, to look at the issues around children who are in care and end up in custody in order to keep them out of custody as far as possible. That is about working with the trusts and the police to ensure that such children do not go into custody in the first place; to prevent things escalating to such a stage that the child ends up committing an offence and getting as far as the court. There is that ongoing piece of work, which should, hopefully, reduce numbers.

Ms Ferguson: OK. Thank you.

Mr Bradley: I have quick question on clause 7. Will data be collated or monitored to identify whether there is any sector or particular group of children, such as those with experience of being in care and who are vulnerable in society, which seems to be more likely to be in trouble with the police?

Ms McAlarney: We should be able to get information on that. At the minute, there is information collected by Youth Justice Agency staff in relation to breaches of bail and how many of those breaches then end up back in court on PACE or on remand. Thankfully, those numbers are declining year-on-year. It is becoming more of a practice for police that they do not necessarily always arrest a child and bring them to court for breach of bail. What we have made a provision for here reflects a lot of what is happening in practice.

Once the Bill is introduced, we would like to see a further decline in the numbers of children who are brought back to the JJC because of breach of bail. That will let us know if it is working.

Mr Bradley: That data will be collected and assessed.

Ms McAlarney: Yes, it is collected.

Mr Bradley: That is all right.

The Chairperson (Mr Frew): That is all the members who wanted to ask questions on the children part of the Bill. Before we get on to the restorative justice scheme, may I be so bold as to go to the age of criminal responsibility and how the amendment and any other potential amendments that may be laid down will impact on Part 2?

Dr Holland: An amendment has been put forward in relation to the age of 14 with the exceptions. As you said, Chair, there may be further amendments in relation to that. There are a number of different options among a range of groups out there regarding what their preference would be. We are aware that a large number of the children's related groups would be keen to see the age set at 16, as opposed to 14, or, for those who want 14 to be in place, that it is age 14 with no exceptions.

With regard to the wider provisions of the Bill, as far as I am aware, there would not be any ramifications from an amendment being brought to the Bill more widely. It would effectively be a stand-alone clause, and then we would look at the outworkings in relation to that provision. However, there should not be cross implications from that for the provisions that are currently in the rest of the Bill.

The Chairperson (Mr Frew): Do you mind if I put that out to members to see whether there are any questions on that? Are you comfortable with that?

Dr Holland: That is no problem.

The Chairperson (Mr Frew): Does any member want to ask a question around the minimum age of criminal responsibility amendment?

Mr Kingston: My main question is about what happens if a child under the age of criminal responsibility commits an offence. Is it not deemed an offence because of their age? What input does the criminal justice system have in providing justice for the victim of whatever has occurred? Does it mean that, if a child is under the minimum age, it is a get-out-of-jail-free card in respect of not just jail but the whole criminal justice system, or are they still obliged to take part in a process through the Youth Justice Agency, recognising that a victim has been created and an offence has occurred?

Dr Holland: That is something that Stephen Martin, the chief executive of the Youth Justice Agency, helpfully touched on last week. In respect of the criminal justice system, if the age were changed, for example, to 14, it would not be deemed to be an offence for an individual who is currently aged between 10 and 13. Stephen was quite keen to emphasise that it is not that there would not be anything done in relation to that child, because there needs to be an acknowledgement of what has occurred, and, as you said, harm will have potentially been caused to that other party. Stephen seemed to indicate that further consideration would have to be given to how those children would then be dealt with, what the role would be for social services, and what role, if any, there would be for the Youth Justice Agency.

Stephen was quite keen in his comments to state that there would possibly be involvement from the Youth Justice Agency on a voluntary basis. It obviously would no longer be on a statutory basis, but there would not be a get-out-of-jail-free card, as such. It is not that there would not be consequences, for want of a better phrase, for that individual. It would be about looking at it in a more age-appropriate manner and seeing how that child could be dealt with most effectively, bearing in mind the behaviors that have been demonstrated and what has given rise to those behaviours in the first instance.

Jenny, do you want to add anything?

Ms McAlarney: No, except to say that I agree with that.

Mr Kingston: That is why the Youth Justice Agency exists. It deals with youth offending in an age-appropriate manner, and everyone will recognise that that is different from how adult offending is treated and that it is at an appropriate level. However, there still needs to be an intervention if, to all intents and purposes, a crime has occurred and damage has been caused to the victim of a crime. The offender also needs to be supported to reform themselves and to not engage in that behaviour again. Those are all the things that the justice system aims to do for adults and children. Even under the current system, those who are under the age of 10 are still subject to some intervention and support so that they can reform themselves. There is a difference of approach, and, I presume that the Youth Justice Agency gives an age-appropriate intervention up to the age of 18.

Dr Holland: If there were a change in the minimum age of criminal responsibility, the outworkings of the practicalities of that would have to be considered, including what those interventions may look like, who may be involved and the appropriate agencies that would be engaged in taking that piece of work forward. If an amendment were tabled and voted through, it is likely that that provision would be put in place through a commencement order in order to allow those further pieces of work to be undertaken with a view to having any provisions commenced as soon as possible. Work would be taken through on what the outworkings of that would look like and the operationalisation of any new provisions, and, as you say, on interventions or work undertaken with the individuals that have been involved in the incident, albeit that it would no longer be a criminal offence as such.

Mr Kingston: That is my last concern. Is it not considered a criminal offence because they are under the age of criminal responsibility? What is it deemed to be? What is it called?

Dr Holland: I am not sure whether a particular term is used.

Ms McAlarney: If a nine-year-old or a nine-and-a-half-year-old committed an offence, it is the same in that it is still not considered an offence.

Mr Kingston: It has caused damage to someone, however. It would otherwise be a crime if they were above that age. My concern about the public messaging is that individual responsibility and good behaviour or bad behaviour, or whatever one deems it, cannot be called a criminal offence.

Dr Holland: It is not that we are saying that there would not be consequences for individuals and that work would not need to be undertaken with them by looking at what might be appropriate for them, what the cause of the behaviour has been and how best that can be addressed. It is about dealing with it in a child-appropriate way given the nature of the particular incident, the seriousness of what has happened and the harm that has been caused to the other party. It is about responding to and dealing with the incident in a slightly different manner.

Again, if that change were made and there was involvement to a certain extent from the Youth Justice Agency in those types of incidents, that would build on the good work that it is already doing in that area. However, as Stephen alluded to, that would be on a voluntary as opposed to a statutory basis.

Mr Kingston: Sorry, I have one last question. The current remit is for what age group? Is it nought to 18 or nought to 17?

Ms McAlarney: It is the current age of criminal responsibility, which is 10, so it is from the age of 10 to 17.

Mr Kingston: Does that mean that the agency does not engage with someone who is below that age?

Ms McAlarney: It can do it on a voluntary basis if there were a case like that, but it is very rare that it would deal with under-10s.

Mr Kingston: Would under-10s be dealt with more by social services?

Ms McAlarney: Yes.

Ms Sheerin: I am just new to the Committee, but I know that there has been a lot of back and forth on the Bill and on the conversation on lowering or increasing the age of criminal responsibility. That goes back to the conversation that we had earlier about the fact that there are almost two ways of looking at it. There is quite a punitive way, which says that somebody has committed a series of criminal offences or incidents and has caused harm to other people, as the previous member to speak referred to. Therefore, that is an indication that they are likely to commit crime later in life. There is a more compassionate approach, which, to be honest, is more appropriate when the person more than likely has extenuating circumstances in their life and things have happened. By going down the route of criminalising them, more often than not, you are writing the script for them, whereas with a bit of support and compassion, things can turn around.

Dr Holland: Obviously, we are very conscious of the young age, which you alluded to, at which individuals are brought into or engage with the criminal justice system more generally and of how there is an increased likelihood that they will end up coming back into the system. Any change to the minimum age of criminal responsibility is about trying to see whether there is a more appropriate way to deal with those incidents given the young person's particular circumstances. It also reflects the fact that the vast majority of those who are involved in the cases that are going through the system and will end up with custodial time in the juvenile justice centre are in the older age group. Over the past six years, we have had only one or two who were aged under 14, and they were on the cusp of reaching their fourteenth birthday.

Ms McAlarney: Yes, there was only one.

Dr Holland: Therefore, to all intents and purposes, custodial sentences are not being given to those who are in the age group that we are talking about. If the amendment were passed, custodial sentences are not being granted — certainly, they have not been in recent years. Generally speaking, they are not being granted to those individuals who would be removed from criminal responsibility if that change were taken forward. The amendment that has been tabled could be seen as providing somewhat of a balance between changing the age of criminal responsibility and the fact that a number of people have concerns about the most serious offences, such as murder, manslaughter and rape, which are the types of crimes that would be exempted from the amendment. Any change to the minimum age of criminal responsibility would, to a certain extent, reflect the way in which cases that are going through the courts are dealt with and the fact that very few people in that age group end up with a period in custody.

Ms Sheerin: It strikes me that an education piece is needed. I have a concern for young people because of what happens online, and social media has become a hotbed of misogyny, racism, sectarianism, homophobia and all the isms in one place. Young people are exposed to those mindsets and that sort of ideology, and we all know about the toxic group chats and that sort of commentary. The young person may not have done anything, but if you give that mindset a few years to grow, by the time that they are an adult, it will have reached fever point. It may have started as a joke with a jag or misogynistic comments, and by the time that they are in their 30s, they are battering somebody to death. That should be the priority, not criminalising people who have done something inadvertently, experienced a bit of peer pressure or got caught carrying on at a low level. Is there cross-departmental work on that or something on engaging with young people about the harm that those mindsets can cause and how they can bed in?

Dr Holland: That would be taken forward mostly in the work on violence against women and girls. There has been a range of advertising campaigns, and there is very much a focus on trying to change mindsets, educate people and ensure that toxic or misogynistic traits are called out as early as possible. It is being done across the board not only to change behaviours and attitudes and raise awareness among younger people but to bring about changes in the wider adult population. Obviously, if those mindsets are tackled and addressed early, that will hopefully prevent them from escalating and becoming more problematic as individuals go from their teenage years through to adulthood. Addressing those issues more generally is very much a focus of that work.

That is a cross-Executive programme that is being taken forward. A wide range of Departments are involved in it, such as the Departments of Justice, Health and Education.

Ms McAlarney: The Youth Justice Agency also has a prevention programme for schools. It goes out to a number of schools across Northern Ireland as part of its work programme to talk to young children about the dangers of things such as sexting, social media and crimes that they could be led into, as well as drugs and alcohol. It covers a range of things.

Ms Sheerin: It is probably for wider society, then. Thank you.

Mr Beattie: Thank you very much, Veronica and Jenny. I have two very direct questions. I take it that if we raised the age of criminal responsibility, there would still be no ability for the police to arrest a child who is below the age of criminal responsibility so that they could assist in an investigation.

Ms McAlarney: I do not think that they would be able to arrest. They would probably be able to interview, but it would be voluntary, I imagine.

Dr Holland: Yes, if the age of criminal responsibility were raised, as we said, a criminal offence would not have been committed, so police could not arrest and charge as such.

Mr Beattie: OK. Before I go to my second question, I will just expand on the first one a little bit. How would we know that a child was involved if there was no proper investigation? What if we think that a child has committed a crime and that child is under the age of criminal investigation but has not been arrested and investigated? We accept that they did it, but what if they were coerced by somebody? For example, somebody else may have committed the crime and told the child to take responsibility. How would we get round that if there is no investigation?

Ms McAlarney: I am not saying that there would not be an investigation, but I do not think that the police would have the power to arrest. They would be able to interview a child, but it would probably have to be on a voluntary basis, which is the way that interviews with children are currently carried out.

Dr Holland: We would also look at what we said earlier about children who are aged 10 to 13, how those incidents are dealt with, the role of social services and what the voluntary role of the Youth Justice Agency could be. It is not that there would not be some form of consideration of what has happened and the outworkings of that for the young person. Again, it would probably reflect the nature and seriousness of what would otherwise be a crime. There are other ways and means by which we would look at how those cases could be dealt with.

Mr Beattie: I kind of get all that, but that is not necessarily the point that I am making. I am asking this: what if the child has taken the rap for something that they did not do? If they do not have to turn up for an investigation, because that is voluntary, how do we figure out that the child did not do it and that an adult — a 16- or 17-year-old — did it and asked the child to take the rap for it? How do we get round that if we do not arrest and investigate? If you are saying that it is voluntary, it will be voluntary unless you are arrested. Do you see the point that I am making? How do we stop that?

That takes me on to my second question, which is this: is there an offence of directing a child who is under the age of criminal responsibility to commit a crime? At the age of 10, it is not such a big issue, but at the age of 14, I am telling you now that it is.

Dr Holland: I am not sure whether there is anything in the organised crime provisions that may assist with the point about individuals who are making use of others generally for criminal purposes.

Ms McAlarney: I think that the Crime and Policing Bill has stuff on child exploitation and the coercion of children.

Dr Holland: Yes.

Ms McAlarney: It might come under the child exploitation provisions more generally. I am not over the details of those.

Mr Beattie: You can see what I am getting at in those two situations. I never really saw it as an issue with a child at the age of 10. It is not likely, but a child who is at the age of 14, for example, is far more linked into society through social media and other things. Emma made a really good point about that. Children who are above the age of consent — 16- or 17-year-olds — who are still a child, as we are alluding to here, could always get that young person at the age of 13 to take responsibility for something that they did not do.

Ms McAlarney: If there were a fairly serious offence, there would definitely be involvement from social services, and you would imagine that that would come out in the discussions with the child. The police can interview a child, but they probably would not arrest them. The police do not tend to arrest children unless it is for something very serious.

Dr Holland: As you said, Jenny, as part of the investigation for more serious offences more generally, consideration would be given to who was involved, who applied pressure and who may have been directing the activity or involved in the criminal offence more generally. Some of that information would potentially come out as part of those wider criminal investigations. In that instance, it would not rest with that particular child, but you would like to think that the source of the information would be found in those deliberations.

Mr Beattie: I do not want to labour this; I am just trying to get my head around it, because I see a loophole — I genuinely do — that means that people could direct a person who is under the age of 14 to conduct crimes or take responsibility for crimes that that person committed. If there is no ability to arrest or investigate the child in order to eliminate them as a suspect for the crime and tell them, "Actually, it wasn't you, son. Away you go. Somebody else did it. Let's find out who it was", that is an important consideration, because there is still a victim out there. If we do not have the ability to arrest and investigate in order to do that, we will not get to the bottom of it. As I said, there is a victim at the other end of the situation. I am concerned about that.

You answered my question well, but I just thought that I should raise that point, because it is something that I am certainly concerned about.

Ms McAlarney: There will definitely be something on that under the child criminal exploitation provisions.

Dr Holland: There will also be something on the wider police investigation and looking at all the particular factors of the case. That was a helpful point to raise.

Ms McAlarney: We will look to the like of Scotland, where the age of criminal responsibility was increased to 12 and where serious consideration is now being given to increasing it to 14. We will look to them for any learning that they have, especially in how to deal with —

Dr Holland: Those types of scenarios.

Ms McAlarney: — offending behaviour amongst —.

Mr Beattie: There is certainly a wider conversation to be had here because of the way that society has changed. I am not against increasing the age of criminal responsibility, by the way; I am just looking at how it affects wider society. For example, how many children under the age of 14 commit crimes today? They may be small or petty crimes, but they are nevertheless crimes in which there is a victim. It would be interesting to get those statistics, because we are about to take that cohort out of the criminal justice system completely.

Dr Holland: That links back to the information on the number of children in custody who are aged 10 to 13. Essentially, at present, no children aged 10 to 13 end up in custody. That would be for the most serious offences. As you said, lower-level offences will be committed, but, over the past number of years, literally no children aged 10 to 13 have got a custodial sentence.

Mr Beattie: I would not want them to either.

Dr Holland: No. We are very glad to have those figures at the moment.

Mr Beattie: I just want to make sure that there is not a loophole here that allows older people to use younger people to get out of what they are up to. Thank you.

Mr Bradley: I have something similar to ask. If the age of criminal responsibility were raised to 14, how many children under the age of 10 would be in the system for serious crimes? If we projected that to include those in the system who are under the age of 13, what is the difference between those figures? Irrespective of a person's age, serious crime needs to be investigated, but, on other side, we do not want young people being tarnished needlessly with a criminal record. It is a balancing act.

Dr Holland: As we have said, the current figures show that, in the category of age 10 to 13, only two people have ended up with a custodial sentence over the past six years, and those individuals were effectively on the cusp of being in the age-14 category.

We do not have the figures for that 10-to-13 grouping and the offences that are associated with that to hand, and I do not know whether there are figures more generally for that.

Ms McAlarney: I am not sure. I think that the numbers of 10- to 13-year-olds who go through the court system is in the region of 200 to 300 a year.

The numbers of under-12s are very small, with numbers in the tens and twenties, and, when 12-year-olds and 13-year-olds are included, there is an increase in that number. As Veronica said, very few who are that age are serious or prolific offenders, and a negligible number end up with a custodial sentence. You would not be removing them; the remainder will get diversionary orders or community orders.

The Chairperson (Mr Frew): This is a fascinating point, and Doug hit on something. The existing article 3 deals with guilt. It reads:

The amendment deals with charges. I suspect that it is dealing with charges, because it differentiates and allows a child aged 10 or over to be charged with murder, manslaughter or rape, as we have discussed. It is nearly as though we have shifted the focus on the minimum age of criminal responsibility from guilt by stopping the police acting on charges. Do you see any fundamental change in that that concerns you?

Ms McAlarney: Obviously, we were not responsible for drafting that amendment.

The Chairperson (Mr Frew): No, of course you were not.

Ms McAlarney: The wording has been chosen, and, as far as I can recollect, it is largely based on the wording that is used for that provision in the legislation in the South of Ireland.

The Chairperson (Mr Frew): There is nothing in either the existing article or the proposed amendment that talks about arrest or interview.

Ms McAlarney: I know. It would take somebody from the Office of the Legislative Counsel (OLC) to explain the difference and the language that has been used and what exactly it means under the law, as well as to explain what it means if a person is found guilty or told that they shall not be charged. Whether all those things include the whole process of arrest needs to be explained. When we were drafting our provisions for bail, remand and custody, a lot of time and thought were given to the exact wording, what we meant and what we wanted to see, and we looked at every possible scenario that could be encompassed under that. It would need somebody with that kind of legislative drafting background to advise on that.

Dr Holland: If an amendment is tabled and made, the Department will want to consider the wording that is used and to consider engagement with the Office of the Legislative Counsel on the nature of the amendment and whether it was felt that it dealt sufficiently with the issue at hand. As you said, Jenny, without wanting to appear unhelpful, the exact nuances of the wording are probably an issue for the Office of the Legislative Counsel or for legal representatives.

Ms McAlarney: As far as we are aware, even though our current provision refers to "a finding of guilt", no child under 10 is ever arrested by the police for an offence.

The Chairperson (Mr Frew): Before we go on to restorative justice, can I take you back to commencement orders? I am late to the party on those. Am I right in saying that, out of all Part 2, it is only clause 8, which deals with accommodation, that you have reserved the right to commence?

Ms McAlarney: Yes.

The Chairperson (Mr Frew): All the rest are to come in after two months.

Ms McAlarney: Yes.

The Chairperson (Mr Frew): OK. Thank you for that.

I will move on to the restorative justice amendment that the Department has proposed.

Dr Holland: Chair, I will be very brief in giving an overview on that. I briefed the Committee on those amendments earlier in the year. Two key elements are associated with the provisions. One is to deal with an oversight in the transfer of policing, security and justice powers at the time that they were devolved to the Department. The associated powers relating to the accreditation of organisations currently sit with the Secretary of State, with an agency arrangement in place that allows the powers to be exercised locally, meaning that they are essentially being taken forward on an administrative basis. The Bill would address that by placing those on a statutory footing, and some changes are being made on the detail and scope of that more generally.

The provisions are looking at accreditation for organisations, as well as individuals, that provide restorative justice services so that there is a register of accredited providers, similar to what we currently have with that register. The amendments would also make provision on inspection and reporting on providers of restorative justice services and, in extreme circumstances, for the removal of accreditation if that were deemed necessary.

Members will be aware from a separate briefing that we are looking at the new accreditation process. We have tried to bring forward a comprehensive and robust process that has a new accreditation framework and practice standards, setting out very clearly the levels of accreditation that will apply. There are three tiers in that, and as we move through those tiers, there are increasing levels of training, expertise and experience, going from the foundation level to the more experienced and serious cases that would be dealt with.

The provisions that we are bringing forward and the new process that is being brought into effect are very much trying to focus on there being a consistency in the level and standard of service provision by ensuring that an appropriate level is being reached; that we have a robust process in place; and that we are getting the assurances and evidence from organisations and individuals about their experience, the level of training they have undertaken and the expertise that they have in taking forward these cases. That process will look at things such as asking applicants to set out a case study of the work that they have undertaken. A range of practice standards, requirements and declarations that are made in that accreditation more generally on things such as adhering to the rule of law, working with criminal justice partners and that type of thing are also covered as part of that process.

I am, obviously, more than happy to answer any queries that members may have on those new provisions.

The Chairperson (Mr Frew): Thank you, Veronica, for that explanation. I will go straight to proposed new clause 26A(5)(a):

"Must" in legislative terms, is very strong, but "from time to time" is very woolly.

Dr Holland: I totally understand where you are coming from on that. We did not want to place a specific, time-bound obligation for those inspections to be undertaken. The accreditation will apply for a three-year period, and, after having discussions with Criminal Justice Inspection Northern Ireland (CJINI), our intention is that CJINI will undertake an inspection of organisations and practitioners in that three-year window. Therefore, over a three-year period, CJINI would undertake an inspection, and, as we went into subsequent three-year periods, that would be further undertaken.

That is the intention. We did not want to tie anyone's hands in the legislation, but that is certainly the intention from the Department's perspective. We have had discussions with CJINI on that, and it seems to be content with that approach.

The Chairperson (Mr Frew): Is it fair to say that someone could get accredited and not be assessed for three years?

Dr Holland: While that is the period for the formal CJINI inspection to be undertaken, we have a protocol lead in place in the Department who has worked extensively on this new process by drawing up practice standards and the accreditation framework. Organisations, and the practitioners in them, will be required to report to the Department on the work that is undertaken. The protocol lead and the Department will have a key role in looking at the service and quality that is being provided.

As part of that process, we will want to have some form of feedback from those who are going through the process. For want of a better phrase, we will want some form of satisfaction survey to be undertaken so that we can periodically look at and assess how that accreditation framework and the services that are being provided are delivered. There will be ongoing review, both by the Department and the protocol lead, who is an expert practitioner in the area and has worked in it for 20 to 25 years. Therefore, work will be undertaken through those avenues in addition to the formal inspection that CJINI will undertake.

From CJINI's perspective, we do not think that it would be feasible for it to do inspections any more frequently than that, such as, for argument's sake, doing something on an annual basis. That is not to say that because a CJINI inspection is undertaken once during that three-year period, there will not be oversight, monitoring and governance of all those organisations and practitioners on the quality of the service that they provide.

The Chairperson (Mr Frew): Proposed new clause 26A(3)(b) requires accredited persons to cooperate with the chief inspector of criminal justice.

That will be included in the requirements. Does that mean that one person can be accredited and can then employ as many people as they see fit? Is that what currently takes place?

Dr Holland: As members will be aware, currently, two organisations are accredited: Northern Ireland Alternatives and Community Restorative Justice Ireland (CRJI). Under the new approach that is being brought forward, there will be accreditation of an organisation and of the practitioners in it. We are in the middle of applications coming in as part of the new process. At the moment, five organisations have applied for organisational accreditation. They will also submit applications for their practitioners. An organisation will seek accreditation in its own right, and it will then put forward applications for individuals in that organisation to become accredited practitioners and work in that field under it. In order for an organisation and its staff to take forward criminal justice cases, the practitioners will have to be accredited to level 2 or 3.

The Chairperson (Mr Frew): Do you think that there should be a certain proportion of accredited people in an organisation before it becomes accredited?

Dr Holland: If an organisation is solely focused on restorative justice work, nothing requires all its staff to be accredited. It is a new process that is being introduced, and we hope that we will build it up over time. We will start off with diversionary disposals before moving into the court sphere. Our sense is that organisations that are very well established in the field will put forward a small number of practitioners for accreditation in the first instance. We expect that, as we take forward subsequent periods of accreditation applications, the vast majority of organisations for which restorative justice work is their bread and butter will look to have a significant proportion of their staff accredited.

When it comes to how the process will work, the Department wants to have assurances that the organisations that undertake restorative justice services provide those to a certain standard and assurances about the level of expertise, experience and training of the individual practitioners in organisations that take forward criminal justice cases.

The Chairperson (Mr Frew): New clause 26A(6) states:

What sort of impact will that have on the organisational accreditation?

Dr Holland: It should not affect the organisational accreditation. Both types of accreditation could be reviewed, depending on the incident or factors being considered. There could be a review of the organisational or practitioner accreditation or both, depending on what had occurred. Again, as part of the oversight process, we will want to closely monitor the work that organisations and their practitioners undertake. If something were to come to our attention, it would be looked into by the protocol lead. In the first instance, the matter would be raised with the organisation and/or the practitioner for them to look at resolving it, before we would go down the route of potentially removing the accreditation from an organisation or practitioner.

The Chairperson (Mr Frew): OK.

Mr Bradley: I have concerns about the removal of CJINI's pre-accreditation role. I cannot understand why that is happening, especially if it will do the inspection every three years. Under new clause 26A, depending on how the provisions are rolled out, there could be a tendency towards disparity or inconsistency in the spread of organisations across the country. If I am being honest, I am not 100% behind it. Will you explain why CJINI's role has been removed?

Dr Holland: One thing to stress about CJINI's role is that we had discussions with CJINI about what it felt would be the most effective involvement of the organisation and its inspection function. CJINI had a concern that, when it comes in earlier, it has not seen how an organisation is practising. When CJINI comes in later and inspects an organisation that has been operating and providing the services under the accreditation framework for six or 12 months, there is something very clear for CJINI to consider and review, and it can identify if there are any issues, difficulties etc that need to be addressed. CJINI was concerned about the pre-inspection function, certainly in the context of an organisation being accredited or otherwise, in that, at that stage, there is not necessarily substantial or material service delivery for CJINI to consider. That is the position that was reached in relation to CJINI after conversations and discussions with CJINI about what was felt to be the most appropriate function for it.

Mr Bradley: I find that incredible. If I were to try to employ six football coaches, I would need to see their accreditation before they get the role. This way of doing it seems to be you saying, "You can have the role, and we'll have a look at you in three years' time to see if you are doing what we think you should be doing", instead of you telling them, "This is what you need to do".

Dr Holland: The accreditation process and framework do not mean that that is not being considered or looked at. More generally, the accreditation process sets out very clear standards and guidelines for both organisations and practitioners about what they are expected to provide and the level of expertise, experience, skills, training etc that they must have in order to undertake the function. There is very clear provision in the accreditation framework and the practice standards about what is expected of organisations and individual practitioners. They must evidence that very clearly as part of the application process that is submitted to us. Organisations and individuals, in different guises, have to clearly set out to us their experience, their expertise and the training that they have undertaken and give us examples of the work that they have undertaken to indicate that they have worked with, and are willing to continue to work with, criminal justice organisations, particularly the police. They also have to agree to a range of standards and declarations in order to undertake the function. Through the application process, and through the standards and provisions that are included in the accreditation framework and the practice standards, we are setting out very clearly what is expected of organisations and practitioners and the evidence that they need to give us. CJINI's role is then to come in and look at how the framework and practice standards have been adhered to in the delivery of the services.

Mr Bradley: Thank you. In my opinion, that is too loose for such an important role. I do not think that there is enough scrutiny at the start of the process, not during it.

Dr Holland: The process that is being put in place has a protocol lead, who has been an expert in the field for 20 or 25 years. They will consider the applications that are put forward and the evidence that is submitted as part of the process. We will also have an independent suitability panel, which will involve three independent experts who have experience in the restorative justice field. The chair of the suitability panel was the chair previously. We also have two individuals who have extensive experience with the Youth Justice Agency and the Probation Board in the provision of restorative justice services. That is the check mechanism in the initial accreditation process that will give the Department assurances about the quality of the work that is being delivered by those organisations and practitioners under the new process.

Mr Bradley: OK. Thank you.

Ms Ferguson: Will you take us through how cases are currently allocated? Who receives them, who screens them and how they are allocated to organisations? Secondly — this is key for me — how will you ensure that the expansion of restorative justice practice to statutory bodies will not diminish the role and benefits of community-based restorative justice organisations?

Dr Holland: If you do not mind, I will deal with your second question first. The focus of the new process and the accreditation framework is on building on what we currently have and trying to make sure that it is as robust as possible and that there are adequate safeguards in the delivery of the services. The focus of the new accreditation framework very much remains on the delivery of services by our voluntary and community sector partners. As we indicated, Northern Ireland Alternatives and Community Restorative Justice Ireland are the two organisations that are currently accredited. As I also mentioned, five organisations have applied for organisational accreditation, and we have had around 20 practitioner applications. Those are all coming in from voluntary and community sector partners. It is not that we are taking cases away from those organisations and allocating them to statutory partners. It is very much about expanding and growing the use of restorative justice in conjunction with our voluntary and community sector partners. I hope that that provides reassurance on the process.

Turning to the current screening and allocation of cases, as I said, the two organisations that are currently accredited and that deal with cases are Northern Ireland Alternatives and Community Restorative Justice Ireland. The funding that the Department provides to those organisations is largely core funding that contributes to their staffing. Those organisations have significant engagement with the police on the identification of the cases that they then look at. Such cases do not necessarily meet the criminal justice threshold for a charge or an offence, but they are cases in which there is significant concern about the individuals involved and a need to bring about resolution and restoration. At present, the Department is not involved in a formal allocation function. Rather, both organisations receive funding that contributes to their staffing and their provision of restorative justice services more generally.

Ms Ferguson: OK. I want to ask you about the accreditation for dealing with more serious cases. You mentioned level 2 and 3 accreditation. What is the expectation of the scale of need for that, based on the current scale of restorative justice practice at those levels? Are there any indications of the numbers that you would like to see involved in this across the North? Finally, there is the issue of equity across the North. How can we ensure that all communities benefit from restorative justice practice?

Dr Holland: On the approach that is being adopted more generally, given that we have two organisations in quite distinct parts of Northern Ireland and that there is not necessarily wider provision across the board, we are very keen that the process focuses on expanding and growing the use of restorative justice. We see significant benefits in restorative justice — in trying to bring the two parties together to get a resolution — for individuals who have been involved in incidents where harm has been caused.

We are taking a phased approach. We are starting with diversionary disposals. In the first instance, the focus is very much on cases that are on the cusp of the criminal justice process — those that might otherwise be taken forward for prosecution. We want to see an increase in the number of cases for which there is a restorative justice outcome. Essentially, we want to flip cases out of the criminal justice system and into out-of-court disposals, where that is considered to be the most appropriate way of resolving the circumstances of a particular case.

While we are starting off with diversionary disposals, with a view to those cases moving to court later, we are also taking a phased approach to the geographical areas that we are going into. We are starting with two areas, and we will hope to expand into a further two areas around four months later. That approach is largely based on the fact that, before the applications came in, we did not know where they would come from geographically. We tried as far as possible to reflect, in our choice of areas, some form of alignment with current service provision.

Given our desire to achieve equity of service provision across the board, we are very keen to expand into areas west of the Bann, in particular, as soon as possible after work in the first few areas has been undertaken. We want to see expansion across the Province, likely within the first 12 to 18 months, whereby all police districts are covered with diversionary disposals before we move into court disposals. There is an element of the unknown at this stage with regard to demand for service provision and where service provision would be feasible. That is the rationale for taking forward the phased approach of diversionary disposals and then court cases, and for the phasing as regards the areas across Northern Ireland that this goes into.

Ms Ferguson: Can you confirm where the two areas are? When NI Alternatives and CRJ Ireland were in, I assumed that, as part of the pilot, there were three areas, predominantly in and around Belfast. Can you confirm which two areas are in the first phase?

Dr Holland: Apologies: I do not have a note of that with me, but I will certainly send that information through to the Committee as soon as I can. In police district terms — I cannot recall what this aligns with — it is police districts B and C and K and L; B and C are the first two, and they will be followed by K and L. Broadly speaking, they are in the greater Belfast area. As I said, the rationale for that is to have it in co-joined police districts — side-by-side police districts — to make it more practical as regards the training of officers and the movement of cases across geographical areas. Another reason that we went for greater Belfast is that we were conscious that there is already considerable service provision and representation in those areas. Operationally, our criminal justice partners felt that it was better to go with some of the smaller individual districts in the first instance. Although we have not finalised the plan and what areas it will be rolled out to, our sense is that, after those first sets of two — four in total — we will go into the north-west region, then go into Belfast and then look at the remaining police districts. Apologies, I should have had a note of those areas. As I said, broadly speaking, it is police districts B and C and K and L.

Ms Ferguson: Thank you. I have one other question on something that was raised by NI Alternatives and CRJI when they were in: the independence of the Probation Board. You can correct me if I am wrong, but, with regard to out-of-court disposals and so on, there will be a body that screens and allocates the cases, whilst the Probation Board will also provide a delivery mechanism. Will you clarify that process for us, please?

Dr Holland: Yes, I will clarify how that process will work. A key aspect is that the possible identification and selection of cases for a restorative justice intervention will be done, in the first instance, by the police and the Public Prosecution Service (PPS). The police will identify cases as being possibly suitable for the use of restorative justice intervention, and the PPS will then consider whether that is an appropriate route to go down. Then, we have the Probation Board as our independent referral body. A range of factors can come into play with regard to its selection of who will provide that role. As a statutory partner, the Probation Board engages with both perpetrators and victims. The Probation Board works with individuals who are serving community-type orders, and it has the victim information unit.

The restorative hub will probably have around 20 practitioners involved in the first instance. As we expand the number of practitioners and the provision of services, we would expect to see the numbers involved in the restorative hub to increase. There will probably be a number of virtual hubs across the Province in which practitioners are housed. We want, as far as possible, an equitable distribution of cases to practitioners who are involved in the hub. Depending on the numbers of applications that we get in the current process, we would hope to have a significant proportion of the practitioners who apply for accreditation to be involved in that hub.

The primary function in determining whether there is to be a restorative intervention in a case will be the decisions that are taken by the police in conjunction with the PPS. Cases will then be allocated to practitioners in the hub. Account will be taken of where practitioners are located, their expertise, the types of cases that they have experience in and the type of case that this involves. As I say, we would want, as far as possible, to have an equitable process for the allocation of cases.

Ms Ferguson: That is great. Thank you.

Mr McGlone: The delivery of community restorative justice is one thing, and we heard that, from those organisations' point of view, it is very effective on the ground. There is delivery and the financing of it, but will you explain to me the mechanism for departmental oversight of community restorative justice projects? If I picked you up correctly, you are thinking of expanding such projects outwards. Will you just explain that to me, please?

Dr Holland: In the new accreditation process, we will want to achieve checks and assurances through consideration of the applications that come in and the evidence that they provide, so that we are satisfied with the organisations and the practitioners who will deliver the service. As part of that process, when the organisations have been accredited and the practitioners are in place, there will be a governance arrangement for reporting back to the Department on the work that is being undertaken. We will have very regular engagement, particularly through our protocol lead, with the practitioners who are involved in the restorative hub. There will be close engagement between our lead and the individuals who operate in that hub.

We will want to get regular progress reports in relation to KPIs and monitoring of the work that is being undertaken. We will have regular engagement with the organisations as part of that process. We will probably have quarterly or six-monthly meetings — in the first instance, it will more likely be quarterly meetings — with organisations that have practitioners in the hub. We will want to have regular engagement with the hub practitioners. We will require that progress reports on the work that is being undertaken are submitted to the Department. Key aspects that we will want to see in those reports are the throughput of cases; whether time frames are being adhered to; and the views of those who are involved in the process and, at a most basic level, their levels of satisfaction with the service that is being provided and whether they feel that it is making a difference.

Mr McGlone: You used the phrase "protocol lead". Will you expand on that a bit for me, please? I do not understand what that means in practice.

Dr Holland: Apologies: I should have explained that properly at the outset. We originally had a restorative justice protocol in place in 2007. A review of that was undertaken, and a new protocol was published in 2023. It effectively sets out the framework or structure that applies to the new accreditation framework and practice standards. The framework and practice standards document that we have brought forward reflects what is in that protocol document: the different levels of accreditation; our expectations; the requirements in relation to the accreditation processes; and the assurances about service delivery that we will want to have.

"Protocol lead" is really the name for the restorative justice expert practitioner who is working with the Department to bring forward the new accreditation framework and the practice standards. They have 20 or 25 years' experience — extensive experience — in the youth and adult worlds of restorative justice. They will have a key role in the work and in the monitoring, review and oversight of it as we take the process forward.

Mr McGlone: If it is appropriate, it might be helpful if we could get a copy of that documentation, please.

Dr Holland: We are more than happy to share the protocol. We will also resend the accreditation framework and the practice standards. That is not a problem at all.

Mr McGlone: That is grand. Thank you very much.

The Chairperson (Mr Frew): OK. Veronica and Jenny, that is it. Your time is really appreciated. It has been a very informative session. Thank you very much.