Official Report: Minutes of Evidence

The Deputy Chairperson (Ms Sheerin): We have a bumper team from the Department. I welcome Lisa Boal, head of the policing policy and legislation team; Brian Thomson, head of AccessNI; Andrew Laverty, Justice Bill manager; Lorraine Ferguson-Coote, head of the criminal policy unit; Máire Sheehan, senior legal adviser; Debbie Corry, head of the organised crime branch; and Andrew Dawson, director of the criminal justice policy and legislation division.

We dealt with Part 2 of the Justice Bill last week; we will go through the other Parts of the Bill today. Officials can come forward when the area relevant to them is being discussed. If members are happy with that, we will begin with the biometrics section and the biometrics amendment. Do you want to make any opening statements or comments?

Mr Andrew Laverty (Department of Justice): Lisa is our policy lead on biometrics, Chair. I am happy for you to start firing questions at us. We understood that we were to discuss the outstanding aspects of the table of issues on which the Committee is looking for comment or responses, if that is fair, rather than give a wholesale brief and do a Q&A on the full Bill. We are happy to be led by you.

The Deputy Chairperson (Ms Sheerin): OK. So you do not have an opening statement as such.

Mr Laverty: Not as such.

The Deputy Chairperson (Ms Sheerin): We covered this a bit two weeks ago. Some concerns have been raised about the change from the current practice on data retention and what the definitions were going to be in terms of exceptional circumstances or on what offences biometric data was going to be held as it currently is, for longer than is set out in the Bill. Will you comment on that?

Ms Lisa Boal (Department of Justice): I am not quite sure what you are —.

The Deputy Chairperson (Ms Sheerin): There were concerns about how offences other than extreme sexual violence offences would be defined in terms of how the biometric data would be held. It is the qualifying offences section.

Ms Boal: Qualifying offences? When someone is arrested for a recordable offence, their fingerprints and DNA are taken. Qualifying offences are the most serious offences. There are recordable offences in general, and qualifying offences are the most serious offences. We had been doing some work to review the list of qualifying offences, and we provided the Committee with a report on the outcome of the consultation on that review.

The Deputy Chairperson (Ms Sheerin): OK. I think that the rights sector had some concerns about the circumstances in which children's biometric data would be retained.

Ms Boal: If a child or young person is convicted of a recordable or qualifying offence and receives a disposal, their data is retained. The various retention periods are set out in the Bill. The retention periods for under-18s are generally shorter than those for adults. Specific provision is made in new article 63M of the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) for young people for whom it is a first offence. Obviously, we have set out the maximum retention periods in the Bill, but there is also provision for a review mechanism. The Committee was provided with a paper on how the review mechanism will work. Although material will be held for the maximum period, the need to continue to hold it will be subject to review by the PSNI part way through that period.

The Deputy Chairperson (Ms Sheerin): We had a conversation last time around how that review would work. I suppose there was a concern that that would still be under the direction of the Chief Constable and there would be no truly independent reviewer. How will that work in practice?

Ms Boal: We envisage something along the lines of the current arrangements for freedom of information. Whenever material is due for review, the PSNI will carry out a review of the need to continue to hold that material. The PSNI is the data controller and the data owner, so it will carry out a review based on risk and offending history — a range of factors — of whether it needs to continue to hold that person's material. That is the statutory review process.

If someone writes to request a review of their material and the PSNI reviews it and decides that it wants to continue to hold that information but the person is not satisfied with that outcome of the process, they can ask the PSNI to carry out an internal review. That will be done by the PSNI but by a separate person or team. The freedom of information complaints process works in the same way. If the person is not happy with the outcome of the PSNI internal review, they have the right to make a complaint to the biometrics commissioner.

The Deputy Chairperson (Ms Sheerin): Yes. That is what we thrashed out a wee bit a few meetings ago. Is the biometrics commissioner still answerable to the Chief Constable?

Ms Boal: No. The biometrics commissioner will be appointed by the Minister. They will be an independent officeholder with independent oversight of how the legislation on the retention of fingerprints and DNA works.

The Deputy Chairperson (Ms Sheerin): OK. Basically, they will be sought after two appeal processes. If somebody puts in a request to appeal and is not happy with the outcome and they appeal it again, it goes to the biometrics commissioner on the third occasion.

Ms Boal: Yes.

The Deputy Chairperson (Ms Sheerin): OK. And the person is appointed by the Minister and completely independent of the PSNI.

Ms Boal: Yes.

The Deputy Chairperson (Ms Sheerin): OK. Thank you.

Ms Ferguson: I have just a couple of questions. I recognise the information that you provided about the information that will be entailed in the applicable courts privacy notices, which will be externally published and available to anyone attending remote hearings. Equally, it will be illegal to record. I would also be interested to know how the Department will satisfy itself that children and other vulnerable groups can adequately understand proceedings; that they fully understand what they are consenting to; that they know, prior to proceedings, how they can participate effectively; and that they are adequately informed of their rights.

Ms Boal: Is that in relation to the use of live links for courts and tribunals?

Ms Ferguson: Yes.

Ms Boal: That is a different section of the Bill.

Ms Máire Sheehan (Department of Justice): That would be for me.

Mr Laverty: We have jumped ahead. Are we moving off biometrics?

The Deputy Chairperson (Ms Sheerin): We were going to do it section by section.

Ms Ferguson: All right.

The Deputy Chairperson (Ms Sheerin): Have we any other questions on biometrics?

Mr Kingston: Thank you for your attendance. I always feel duty-bound to question the need to create another commissioner's office. What happens in other jurisdictions in the UK and Ireland? Do they have stand-alone biometric commissioners in any of those jurisdictions, or are they tied in with existing posts? Could an existing post holder carry out that function?

Ms Boal: Scotland has a biometrics commissioner, and he gave evidence to the Committee, as I understand it.

Mr Kingston: I joined quite recently.

Ms Boal: There is a Scottish Biometrics Commissioner, and he works closely with relevant bodies in Scotland. The position in England and Wales is under review. There is a UK Biometrics and Surveillance Camera Commissioner. The Home Office launched a consultation last week, and it wants to review its oversight arrangements. It is taking views on the role of a future commissioner and how it will link in with other bodies, such as the Information Commissioner and the Investigatory Powers Commissioner. I am not sure where that will go.

We propose to set up a biometrics commissioner in Northern Ireland to provide independent oversight of how the legislation will work in practice. Our legislation is slightly different from that in England and Scotland, and we think that it will be useful to have a commissioner with local knowledge who can work more closely with local bodies and stakeholders. We anticipate that they will work closely with the Information Commissioner's Office and other relevant oversight bodies through memorandums of understanding (MOUs) or other arrangements. Because of the sensitivity around all of this and taking account of the European Court judgement in the Gaughran case, we feel that it will be appropriate and that the independent oversight and specialist function is an important measure to ensure public confidence, particularly for the retention of fingerprints and DNA.

Mr Kingston: I think I have asked this before, but new article 63Y is on the exclusion of certain offences under the Terrorism Act 2000, the International Criminal Court Act 2001, the Terrorism Prevention and Investigation Measures Act 2011, the Counter-Terrorism and Border Security Act 2019 and the National Security Act 2023. Will certain biometric data be exempt from deletion during a person's lifetime for certain serious offences? What are the limits?

Ms Boal: It will depend on the legislation. Those Acts are excluded because they are reserved and excepted matters. For example, under the counterterror legislation, if someone is convicted of a terrorist offence, their material can be held indefinitely, but the legislation and retention periods are set by the Home Office. It is not within our scope to legislate on that.

Mr Kingston: So those are all set by the Home Office because of the seriousness of the offence.

Ms Boal: Yes, because they are reserved and excepted matters.

Mr Kingston: And that applies to offences in Northern Ireland, even if they are investigated by the local police.

Ms Boal: Yes. Even if they are being investigated under the counterterror legislation by the PSNI, the counterterror legislation is still a reserved or excepted matter.

Mr Kingston: OK. Thank you.

The Deputy Chairperson (Ms Sheerin): OK. I do not think anyone else has indicated. Speak now or for ever hold your peace.

Last time, we had a conversation about whether photographs were considered to be biometric data. Concerns or worries have been flagged by the Northern Ireland Commissioner for Children and Young People (NICCY) and others because we are moving at a fast pace and all of this needs to be future-proofed. Why is that not considered or included in the Bill? What is the rationale for that?

Ms Boal: The measures taken in the Bill are specifically to address the issues around fingerprints and DNA, because that is what is covered in the existing PACE legislation and that was the initial issue that came out of the European Court judgements that we had to address. Images have been evolving in recent years. We have tried to do the fingerprint and DNA amendments on a couple of occasions, and it has not worked out. Time has gone by, and developments in the use of images and technology have progressed, but there is a difference between a photograph as an image and when it becomes a biometric, and that is considered when it is templated for formatting, so that has been a recent development.

We want to get the solution for fingerprints and DNA in place first, and we want to look at the policy and legislation needs for images in more depth. The PSNI has said that its policy position is to apply the same retention to custody images as it does to fingerprints and DNA, and that will achieve the same effect and purpose in the meantime. However, we want to look at the policy and legislation around images, because you will be aware that the Home Office launched a consultation last week on images, facial recognition and the use of technology. We want to see the reaction to the consultation and where it goes from there. Scotland is also considering it.

We want to take account of developments in England, Wales and Scotland and to start to think separately about images, because it is not just about the use of images but about the definition and how they are shared and retained. We want to look at that range of issues. We want to do that as a separate piece of work.

The Deputy Chairperson (Ms Sheerin): Depending on how the British Home Office acts once it finishes its consultation, do you propose that that come under secondary legislation?

Ms Boal: If we were to legislate here, it would be primary legislation.

The Deputy Chairperson (Ms Sheerin): But that would be at some point in the future.

Ms Boal: Yes.

Mr Laverty: It would not be a part of this Bill.

Ms Boal: There are too many issues to work through when you start to think about definitions. It is not just about retention; we want to look at the use, sharing and processing of images. If you start to think about future-proofing, you also see the development of facial recognition technology. We want to make sure that we think about the issues, such as rights, privacy, safeguards and all those things. We want to take the time to do that, because it will take a lot of consultation, particularly with human rights organisations, given that concerns have already been expressed about facial recognition. We want to make sure that any policy or legislation that we bring forward in that space includes the proper safeguards and has been subject to the proper consultation process. We want to take the time to do that properly; we do not want to rush anything.

The Deputy Chairperson (Ms Sheerin): This is probably more of an operational question, but are those photographs currently retained as biometric data, as per PACE?

Ms Boal: Photographs are currently retained by the PSNI. It applies the same retention period to them as it does to fingerprints and DNA.

The Deputy Chairperson (Ms Sheerin): OK, but it is not set out in legislation.

Ms Boal: It is not in legislation, no.

Ms Ferguson: I will follow up on that point. You will have heard that that has been a concerted concern for most of those who have come to the table. It is a missed opportunity. We should not wait for other jurisdictions and other legislatures to act, particularly on photographs. We have not future-proofed the Bill. I get your point about facial recognition etc, but, from a human rights perspective, the photographs are being taken and used. Although you said that the police will continue to use photographs as they use fingerprints, there is no statutory duty for them to do that. It is not a healthy position to be in, to be honest. Is there any possibility that photographs could be recognised as biometric data in the Bill?

Ms Boal: I just do not think that it is possible to do that. We would not have time to do the proper consultation process and policy development. It would not be possible.

Mr Laverty: That is likely to require significant drafting resources from the Office of the Legislative Counsel (OLC). It is not something that could be developed at pace, because of the human rights concern. There is a lot of interconnected legislation, and you would want to make sure that there were no unintended consequences of bringing something in on top of the Bill's provisions, which are already subject to further amendments.

The Deputy Chairperson (Ms Sheerin): Notwithstanding all of that, the human rights concerns that relate to the issue are already very much present, if the PSNI is already holding the data on an ad hoc or informal basis.

We will move on to Part 3, which is on live links. I do not know whether that requires a change at the witnesses' table.

Mr Laverty: There are two sections to the live links arrangements. Lisa is responsible for the police live links provisions, which are clauses 20 and 21 of the Bill, and Máire is the policy lead and senior legal adviser on the live link amendments, which are on the wider use of live links in courts and tribunals.

The Deputy Chairperson (Ms Sheerin): OK. Ciara has indicated, but, if anyone else wishes to do so, wail away.

Ms Ferguson: Apologies for moving swiftly on. I turn back to my first question on privacy notices and their role in relation to attendance at remote hearings. I have raised the issue on numerous occasions, but it would be interesting to know how the Department has satisfied itself that children and vulnerable groups will be able to adequately understand proceedings so that they fully understand what they are consenting to. Prior to proceedings, they need to be adequately informed of their rights and to know how to participate effectively. My question is about that area. I know that live links are used already, but I have raised concerns about that, particularly in regard to vulnerable young people and those who may not speak English as their first language. How can they be fully engaged and informed so that they know exactly what is happening?

Ms Sheehan: For a number of the things that you raise, different measures are in place. First, English not being the first language is not a new thing in the courts and tribunals, so there are already well-established procedures for the provision of interpretation. There are practised protocols between the PSNI and the Courts and Tribunals Service for the criminal law sector, and tribunals have the same facility to obtain interpreters.

The other matter that you talked about was vulnerability. Registered intermediaries are in place for a child or any person who is having difficulty in their communication, whether that is because of neurodiversity or some other vulnerability. None of those things are new to the justice system. Contact between children and the criminal court is limited, and, you rarely see children giving evidence even in the civil court where an adult is also involved in the civil matter or in the family court, unless they are of a certain age. The feedback from those who deal with children, such as the Guardian Ad Litem and the Victim Support young witness programme, is that they have an accessible document for children who are preparing to come to the remote evidence centre. I am sure that you have heard on other occasions about the positive feedback that we are getting because remote evidence centres allow a parent who is accompanying a child or who is a witness in the same case as the child victim of crime to give their evidence remotely.

The remote evidence provision is only permissive; it is not a requirement, nor does it change the whole system of the courts. In particular, it does not change what might be considered to be the most essential things, so people will know what is happening on the day of what you might call the "contested hearing" or of the trial, whether the matter is civil, criminal or whatever. Those hearings happen in person, unless there is a child or a vulnerable witness who is entitled to special measures. That sits at the top tier, totally separate from the proposals in the amendments that we want to introduce. The clauses have been drafted to provide for somebody — not just the party to the case but P, the witness or person involved — who may not be eligible for special measures but has some concerns to ask whether they can attend remotely, under the interests of justice test, because they have, maybe, caring responsibilities or another difficulty. Their reasons and the evidence of them would be assessed against the Lady Chief Justice's guidance.

New guidance was issued in October 2025, and, with that, the application form and information for anyone who applies online. The guidance tells people to state in their application why, with reference to the Lady Chief Justice's guidance, it is in the interests of justice for them to attend remotely. In many cases, the professional representative will put the application in for them. For witnesses in a criminal matter, the victim support unit in the Public Prosecution Service (PPS) would get information from the PSNI.

As I said, there are lots of avenues by which people can get the information and then the assessment. In the end, it will still be for a judge to decide whether, in all the circumstances, it is in the interests of justice for a witness to give their evidence in person or remotely.

Ms Ferguson: Is it currently being monitored?

Ms Sheehan: When you say "monitored", I just wonder what the parameters are.

Ms Ferguson: It is in the sense of feedback. Do you get feedback on how people have been able to experience —

Ms Sheehan: I could, I mean —.

Ms Ferguson: — live links.

Ms Sheehan: From a number of engagements.

Ms Ferguson: I have visited the remote centres —

Ms Sheehan: Well, we have got the —.

Ms Ferguson: — and I can see how effective it can be, but —.

Ms Sheehan: The Victims' Commissioner has given positive feedback on the use of virtual and remote attendance and is particularly keen to see more victims of crime who do not meet the special measures test being able to use it. We have had positive feedback from parents accompanying children who have been caught up in a case. Woodlands Juvenile Justice Centre has advised us that, particularly for sentencing, hybrid court hearings enable it to ensure that a young person in its care has somebody familiar nearby to communicate with so that they understand exactly what the sentence is or whether something has been imposed that should have been on a plea. Equally, when it is used for remand, it means that someone is there to support the young person in case they are disappointed: if there was an application for them to be released from custody but that does not happen, they have the support of those with whom they are familiar. The Guardian Ad Litem has advised us that it sees a number of benefits: families and young people have commented on being able to join at an agreed time, reducing their anxiety and their waiting time in the court.

Those are all specific, real-life examples of the experience of remote attendance in different areas of the courts. We have been advised that those who want and are allowed to use it find it a positive experience, but not everybody wants to attend remotely, and we have had feedback on that from victims. They are individuals who have different choices, and some people want to be present in the court. I am not talking about those who are eligible for special measures; generally, everybody who is eligible will apply for them. The provision is a permissive tool; it is not a requirement. In the absence of something such as the pandemic — [Inaudible.]

Ms Sheehan: — exactly; in the absence of that — nobody will be compelled to attend remotely.

Ms Ferguson: This is just for clarity; obviously, I welcome all the positive responses. I have visited the remote centre and have seen the range of tools, but there is no systematic monitoring and there are no plans to systematically monitor users at all levels, whether they are in a custody suite or in court.

Ms Sheehan: Well, I am not responsible for the custody suite.

Ms Ferguson: No, you are not, but, even in the court suite, there is no systematic monitoring. The Department has no plans to do a systematic annual or biannual review of court users, for instance, who have used it. Is there anything like that? [Inaudible.]

Ms Ferguson: It may all be well, but things evolve and change, and it is pertinent to that to constantly monitor and evaluate the service as things evolve. As we said earlier, things can evolve quickly.

Ms Sheehan: But, generally, it is the responsibility —.

Mr Laverty: Sorry: I was going to say that I do not have it here, but we have been compiling material to fill in the blanks in the table of evidence to return to you. We have got input from colleagues in the Courts and Tribunals Service that specifically addresses the monitoring, use and recording by the Themis programme of the use of live links . There is input — I will not embarrass myself by trying to repeat it, with this brain cell that I have occupying this space at the moment — and there will be material on that point in the table of evidence that we return to you.

Ms Ferguson: That is fine. That is grand.

I have one other question, on the justice video platform training. Is that the only training that covers the updated service provision? Does it include training on circumstances in which live links can be used? Does the training outline to staff the safeguards that should be in place to ensure that such technology is accessible and used appropriately? My question is just about the training — the justice video platform training — that is available.

Ms Sheehan: To whom? An eight-page document is made available to people when they are invited to access the justice video platform; that has already been rolled out to different courtrooms. The judiciary has received separate training. The platform is a scaled-up version of Webex, a tool that was already available for audio and video links.

As I understand it, on the operational side, there is an instruction sheet for clerks who, on coming into the court, check that Webex is operational. As part of my engagement on the policy side, I attended, when remote hearings were happening, in person and remotely. I was able to bring to the court's attention the fact that the clerk had not checked the cameras. There is a requirement under the coronavirus provisions that the person attending remotely can see and hear the relevant players in the courtroom, and the camera angle had gone awry. After that, a reminder was put around the courts. There can be human error, but everyone is aware that it is necessary for the witness attending remotely to be seen and heard by those who are also attending who are the active players in the court system: the judge and the lawyers.

It is not so essential that the public can be seen and heard. They can see but do not necessarily have to be seen by the witness who is attending remotely. That is the difference that the planned amendments address. The technology may not always be able to meet that difficulty, and there is an express reservation for some of the measures that can be put in place where someone is entitled to be screened by order of the court because of someone who is present in the courtroom.

Ms Ferguson: Thank you.

The Deputy Chairperson (Ms Sheerin): Has anyone else got any question on live links? No.

Mr Laverty: Chair, with your permission, can we excuse Lisa and Máire, if their business has concluded?

The Deputy Chairperson (Ms Sheerin): Of course. Yes.

Mr Laverty: Brian will come forward to speak to the AccessNI provisions in the Bill and the planned amendment.

The Deputy Chairperson (Ms Sheerin): Thank you very much. Do you have any opening comments?

Mr Brian Thomson (Department of Justice): No.

The Deputy Chairperson (Ms Sheerin): It is a planned amendment, and members will probably have realised that the Research and Information Service (RaISe) paper on the taxing master relates to how it will work in practice.

Mr Laverty: Sorry, Deputy Chair: we have no one here to speak to the taxing master legal aid clauses, because we did not think that there were any outstanding issues in the table that meant that they should be here.

The Deputy Chairperson (Ms Sheerin): That is OK. As I understand it, the change to how the fees will be worked out takes some power away from the taxing master.

Mr Laverty: I would not presume to know the answer to any questions on the legal aid provisions. That is an error on our part, Deputy Chair: I made the call on who would attend today.

The Deputy Chairperson (Ms Sheerin): You are fine.

Mr Laverty: We can follow up on any issues that we are not able to address in person today. We did not see anything on the taxation stuff in the table of evidence that would require further comment or response from the Department. Is it a new research paper that has just been compiled?

The Deputy Chairperson (Ms Sheerin): It is a paper that we have been presented with for this week.

Mr Laverty: Right. Presumably the paper will be issued to the Department, and it will provide a response in writing.

The Deputy Chairperson (Ms Sheerin): Have I misunderstood? OK. There is a planned AccessNI amendment. Are we —?

Mr Laverty: Brian is here to speak to that.

The Deputy Chairperson (Ms Sheerin): Are we getting sight of that?

Mr Laverty: You already have it.

The Deputy Chairperson (Ms Sheerin): Sorry. It is about the amendment that is planned before Consideration Stage.

Mr Laverty: That has been received and published as part of the call for evidence. There are two AccessNI provisions. One, which is in the Bill, is about automatic —.

Mr Thomson: Clause 29 is about the role of the independent reviewer and the treatment of youth non-court disposals in the disclosure process. Clause 29A, which is the planned amendment, has the list of specified offences and is about how we will re-present that in the Police Act 1997 in a new schedule and some associated clauses.

Mr Laverty: That is commonly referred to as the "filtering scheme" —

Mr Thomson: Yes.

Mr Laverty: — by which old and minor convictions are removed from criminal records.

The Deputy Chairperson (Ms Sheerin): Has that already come to the Committee?

Mr Thomson: It has come to the Committee. We wanted to do it by negative resolution to speed up the process, but the Committee wanted it to remain as a draft affirmative instrument. That has been agreed and fed back to the Committee.

The Deputy Chairperson (Ms Sheerin): OK.

Mr Laverty: We have not shared it with you yet because it is such a small change, but we have an amended provision, with the change from negative resolution to affirmative instrument built into it. That has been actioned, and, as we understand it, there is no further requirement from the Committee in respect of those provisions.

The Deputy Chairperson (Ms Sheerin): And that will come to the Committee?

Mr Laverty: We can share that with you at any stage.

The Deputy Chairperson (Ms Sheerin): OK. Has anyone else questions in this section? No, I think that everyone is happy enough. That was a short sit. [Laughter.]

Mr Laverty: With your permission, Chair, we will excuse Brian and bring forward Lorraine and Debbie.

The Deputy Chairperson (Ms Sheerin): This is the repeal of the —.

Mr Laverty: Vagrancy Acts. Lorraine can speak to that.

The Deputy Chairperson (Ms Sheerin): Do any other members have comments? There were concerns about that, and the Department gave a view on Professor Brown's proposal, which it is not minded to implement. Is there a bit of vagueness around what the exact replacement for the current —?

Ms Lorraine Ferguson-Coote (Department of Justice): I can talk to the Kevin Brown proposal, if you would like me to proceed with that.

The Deputy Chairperson (Ms Sheerin): To be honest with you, I am content because I had a similar view [Laughter.]

Unless other —.

Ms Ferguson-Coote: If you want me to explain something —.

The Deputy Chairperson (Ms Sheerin): Brian has indicated. Is there something that you want to say, Brian?

Mr Kingston: My party is concerned about whether the Bill, which just repeals the Vagrancy Acts, will give the police sufficient tools and about the message that that will send out. We are disappointed by the response from the Department to Professor Brown's paper. There is merit in it, so we may well bring it forward to look at it in more detail.

We understand that the wording in the Vagrancy Acts is out of date and is not enforced. People sleeping rough or begging are not just automatically arrested — that is not seen to be the solution — but we are concerned that the perception of the public messaging could be that there are no longer legal issues with sleeping rough and begging in the streets, that that is acceptable and that the police cannot take action.

We recognise that there are issues relating to harassment — I hear that from members of the public — particularly for people going through the city centre. We have heard from businesses about the real-life consequences: they have to clear up what is left behind by people who are sleeping rough or have to ask people to move on. We do not want to get into a situation in which people refuse to move on and cause nuisance and harassment. We want to approach all that in a way that understands vulnerable people, but all members of the public can be vulnerable if they feel harassed or intimidated.

There is a need to ensure that the police have all the necessary legislation so that they do not have to wait until a more definable offence is committed before they can act to encourage and persuade someone to move on or to change their behaviour. That is what we feel, particularly when it comes to public spaces such as the main shopping areas of city centres and town centres, which are key locations: the public square needs to be protected.

Ms Ferguson-Coote: OK. Thanks for your question. Maybe I can cover off the Kevin Brown amendment and expand on the response that we gave to the Committee on that.

We are grateful to Professor Brown for the consideration that he has given in that area. As the Committee knows, Professor Brown responded to our consultation. We, as the Department, carried out the review of section 3 of the Vagrancy (Ireland) Act 1847, which criminalises begging. I am centring on begging, because that is the focus of Professor Brown's amendment. We carried out a public consultation on that, seeking views on the repeal and on whether any gaps would emerge as a consequence of repealing section 3 in its entirety. The Department continues to be of the view that no replacement legislation is required and that sufficient offences are available in the modern legislative framework to allow the police to deal with anyone who crosses the criminal threshold.

We do not support Professor Brown's proposals, because we think that they would lead to the continued criminalisation and marginalisation of simple begging and, as you pointed out, of some of the most vulnerable people in our society. The proposals do not revolve around the complexities of the issue and the people involved, which require a multi-agency response beyond Justice. Criminalisation adds to people's downward spiral: that very much came out in the consultation responses. People who are simply begging should not be treated differently from others in society who cross the criminal threshold. They should not be marginalised. They should be treated in the same way as anybody else who crosses it, but the fact that they are begging is not in itself justification for someone to be criminalised. Why should they be treated any differently from someone else who crosses the criminal threshold? The proposed decriminalisation of begging requires a different approach and mindset. We have to turn our minds to taking begging out of the equation when it comes to criminalisation. Sanctions against a person who assaults someone should be pursued solely on the basis of the offence of assault, not because the person was begging.

The measures proposed in Professor Brown's amendment also raise concerns that relate to article 8 of the European Convention on Human Rights (ECHR). I will be specific. The first part of his proposed provision deals with aggressive obstruction etc. He goes on to refer to moving people on and states that, if they do not move on, they would be criminalised and given a fine of up to £500. The proposals centre on simple begging. We relied on a particular judgement: Lacatus v Switzerland. That was a European Court of Human Rights judgement of 2021 that concerned a young woman who had been fined for begging in a jurisdiction that had a blanket ban on begging. Being unable to pay the fine, she was imprisoned for five days.

The woman had no other means of support. She was unemployed and was not in receipt of social benefits. The courts stated that that interference with the applicant's rights was not necessary in a democratic society and that the right to call on others for assistance went to the very essence of the rights protected by article 8 of the convention.

Any restriction on begging must have a legal basis, which is the legality element; be aimed at a legitimate purpose, which is the legitimacy element; and be necessary in a democratic society, which is the proportionality element. We are concerned that, if the proposal were to be brought forward on the repeal of section 3, it would be a backwards step. In a sense, it would reinstate section 3 of the current law after it had been repealed.

The PSNI currently takes an "engage and explain" approach to assessing the situation with someone who is begging. They establish the circumstances and direct that person to appropriate agencies for support. Arrest is a last option. Its application of section 3 of the legislation is, in our view, proportionate. However, if the Bill were to be passed with the proposal included, there would be an expectation, as there is with any legislation, that the police would actively apply it. It is right that, if you make a law, it should be applied. We would be going back on ourselves in that case. We consider that that would result in the most vulnerable in our society being further marginalised and stigmatised. Were that to be implemented, there would also be a risk of a challenge with regard to ECHR article 8. We are also concerned about the penalty being £500, considering that it is a sanction for someone who is begging. The reality is that, if they do not pay that, it would become an even more serious sanction.

Those are our views overall. We would apply caution in the case of that proposal. We think that that would be going backwards and would be out of kilter with the rest of the UK. At the moment, begging is not criminalised in Scotland. In Scotland, they use current powers to deal with a person's behaviour, and the important part of that is that it is the behaviour that is being dealt with. Whilst the first part of the proposed amendment would be within the margin of appreciation of that judgement, its application would not necessarily be within that. There is always potential for it to go wrong and infringe that.

We have to take the begging out of it and treat someone who crosses the criminal threshold the same as we would another member of the public. If we do not have a different mindset towards people who are begging and the amendment were to be included, the first part of it, on its application, could be confused and could breach article 8 of the ECHR. Unless the behaviour of aggression — "harasses, intimidates, assaults", as it is in the proposed provision — is the bit that is actually dealt with in the offence, it would run contrary to the Lacatus judgement. It is important to make that point. We feel that it would be a step backwards.

I am happy to go through all the elements of Professor Brown's provision. Beyond subsection (1), however, which, we think, mostly works within the margin of appreciation of the judgement, there would be difficulties if it were not implemented and applied properly. The rest of the provision about moving people on would lead to people being marginalised. You would be moving them on but what for? You would be moving them on simply for begging. That is the reality, whether they are outside business premises, at an ATM or whatever.

We talk about how people feel unsafe or intimidated. Our consultation on repeal was well supported. We received 11 responses, nine of which supported repeal. The two business improvement districts (BIDs) in Belfast did not support that, because they felt that replacement legislation was needed so that there would be a power to move people on.

The reality is this, however: what are you moving that person on for? I know that, when the police gave evidence to the Committee, they shared that view. You are moving them on for simply begging, and you are marginalising those people. That is, primarily, the issue that we have around that.

The BIDs are there to ensure that there are safe spaces in the city centre that are attractive to customers and businesses. Just because someone is begging is not a reason to criminalise them. The judgement touched on that. It stated that attempts to:

were not a legitimate aim for restricting the right to beg. That is a very important point to make. We all — the police, the public and businesses — need to turn our attention to the fact that, while we may feel uncomfortable with people begging, it is not a new type of behaviour. The people involved may have complex issues. We are talking about begging, but often that is tied up with rough sleeping. People who are rough sleeping are begging. We heard on the news this morning about the deaths of 58 homeless people in Northern Ireland last year. The highest number of estimated deaths in one place was 20, and those occurred in Belfast. Those cases were mostly drug-related. It is important to point out that the approach should not be to criminalise but to nurture, understand and support. We talked about that in our previous session, so I will not labour that.

Those are the important points to make in terms of that proposal.

The Deputy Chairperson (Ms Sheerin): We had a conversation last time about the need for compassion as a priority. Did you want back in, Brian?

Mr Kingston: May I come back on that? I understand what you say. I have engaged extensively with homeless charities over the years. When I find people begging, I often give them something. I do not give them money; I would give them food or a drink, if I can. As a policy, I would not give money because it is often used for addictions, such as you have spoken about. I would always encourage people not to give money to people who are begging, because often that is to feed an addiction, which is not in their interest. I recognise that there is a lot of good work going on to help people who are in that scenario, particularly with those who sleep rough. We will look at that when it comes to tabling further amendments.

From my notes from previous meetings, I recall that the police said that, if the law were simply to be repealed, they would not be able to deal with begging when it goes beyond an acceptable level. In the Republic of Ireland, the police have a power to move people on, for example, if they beg beside an ATM. There is a need for police powers where there is begging that causes harassment or obstruction or impedes the public. If you are running a shop and someone is begging outside every day, you might have a view on the power to move on. You can only tolerate something for a while.

There is no point in us getting into a debate on all of that now. We need to deal with begging. It is not a passive activity; it has an impact on people. There has to be a limit, at which point the police can act when begging causes a level of nuisance or harassment. We will continue to look at that.

Ms Ferguson-Coote: I will respond to a couple of your points. It is important to say that we need to deal with begging differently. There are concerns around people feeling safe and that they are not intimidated or harassed. Everybody's perception of how they feel uncomfortable is different. There are no current powers to move on. For example, some people might feel uncomfortable around or intimidated by a group of youths wearing hoodies standing beside an ATM. If you are a woman, you might feel uncomfortable approaching a group of men standing outside a pub or on a street corner in the city centre. There are no current powers to ask those people to move on. We have to put our trust in the police on the ground to resolve a situation without the use of force. In such instances, we are talking about conflict resolution. The first method that the police will use is to talk to that person and talk them round. Youths causing annoyance far outweighs someone begging and is the neighbourhood police's bread and butter. You move those young people along, but where do they go? They go somewhere else, but you do not have any criminal power to move that person or arrest them, as Professor Brown has said.

The second point is that the Lacatus judgement followed the 2011 legislation introduced in the Republic of Ireland. In England and Wales, there was an attempt by the previous Government to bring in that offence — nuisance begging — and that was strongly resisted, even by some Conservatives. The Crime and Policing Bill has two measures: facilitating someone to beg and the trespass element. They tried to bring in something from the previous Criminal Justice Bill back into the Crime and Policing Bill, but it did not hold any ground at all and was withdrawn.

With regard to the Dublin experience, a survey was carried out in the South of Ireland. The Garda and Dublin City Council announced a new strategy to take Dublin's 50 most persistent beggars off the streets. The Assistant Garda Commissioner, who has the power to move people on from ATMs, said that the activities of the group, who were almost exclusively homeless, were being dealt with as a criminal justice issue when, in reality, their begging was the result of a number of problems, including addiction, and required a multidisciplinary approach. The guards, even with that legislation, felt that it was different.

In a survey by Dublin City Council, there were mixed views on the legislation. Some said that begging had increased in Dublin city centre and that begging was viewed as a social issue, not a criminal matter, and should be addressed that way. A number of things pointed to the fact that we should not criminalise people, even with this legislation. Scotland does not have it, and England and Wales are not going to move that way either; the Labour Government are clear on that. I just wanted to put that into the picture.

The Deputy Chairperson (Ms Sheerin): Are you content, Brian?

Mr Kingston: I am. It is a matter that we will return to. Carry on for now.

Mr McGlone: I have two or three points to raise. First, did you refer to "a right to beg"?

Ms Ferguson-Coote: Yes, at the moment, we have a ban on begging, which is approached under section 3 of the Vagrancy (Ireland) Act 1847. The police deal with it proportionately under section 3. They will engage with the person and will only arrest —

Mr McGlone: Sorry, did I pick you up right that you referred to there being "a right to beg"?

Ms Ferguson-Coote: A right to beg in what context?

Mr McGlone: Having a right to beg.

Ms Ferguson-Coote: No, there are protections in the judgement around persons begging.

Mr McGlone: No, sorry, I get where you are going with the human rights stuff, but that does not qualify as a legal right to beg.

Ms Ferguson-Coote: A person should not be disadvantaged in law.

Mr McGlone: No. We are talking about two different things. There is a difference between a person being disadvantaged and their human rights being abused or whatever and having a legal right to do what they are doing. Those are two different things. I want to get that clarified in my mind. A person being disadvantaged under human rights legislation is one thing; a person doing something that, legally, is not right is another thing.

Ms Ferguson-Coote: Under our current legislation — section 3 of the Vagrancy Act — it is not lawful to beg. We are decriminalising that.

Mr McGlone: That is OK. That is what I wanted clarified.

I will move on to my second point. I understand where you are coming from and hear what you say, but I am not sure about there being a 100% correlation between begging and addiction; there may well be other mental health issues.

What are the options in cases where the begging is aggressive or really aggressive?

Ms Ferguson-Coote: It very much depends on the circumstances, but, if the person, like any other member of the public, crosses the criminal threshold, there is harassment legislation. What is the nature of the aggression? Are they harassing the person? If that is the case, it is a criminal offence. We are trying to say that we need to take begging out of the whole thing and treat the person in the same way as any other member of the public. If someone is being aggressive to you, there are ways and means for the police to deal with that. If the police attend, the person can be talked down, and that is always the first approach. If it is a person with complex needs — they mainly are — it is about making sure that they get the most appropriate support.

Mr McGlone: OK.

Mr Laverty: There is an existing criminal offence under the Protection from Stalking Act (Northern Ireland) 2022 of a person acting in a threatening or abusive manner, which is a single instance offence. It is an existing criminal offence in statute.

Mr McGlone: Have many people been prosecuted using that offence?

Mr Laverty: I do not know.

Mr McGlone: No.

Ms Ferguson-Coote: It is a new offence, and we listed it in our consultation. If I understood Assistant Chief Constable McNally last week, there are other offences that can be used to deal with such behaviours.

You have to look at the gap that you need to plug. We do not believe that there is a gap with repeal. We believe that Professor Brown's amendment would be a step backwards, certainly in comparison with the rest of the UK. There would be issues with its application. There is the potential for a challenge, particularly with clause 1, if it is not applied properly. If this is about changing mindsets — the police, on repeal of the section, will seek to do that — it should not be a case of saying, "That person is begging; you can arrest them for vagrancy". We want to change the mindset and look at the tools that we already have to deal with begging. That is how it is dealt with in Scotland. In Scotland, the police in Glasgow and Aberdeen have attempted to bring in by-laws to deal with nuisance begging a few times. The Scottish Government have been clear that they will not support that approach — they have the authority over that — and that they do not want to go down that route. The Labour Government will not go down that route. It has been in in the Republic of Ireland since 2011, and the Lacatus judgement was in 2021.

Mr McGlone: Thank you.

Mr Laverty: Just on that, I do not know the figures of the top of my head, but we produced a report on the operation of the Protection from Stalking Act. It was a requirement, under the legislation, to make a report to the Committee, and that included a breakdown of offences, such as stalking, the use of stalking prevention orders (SPOs) and the use of the offence of threatening or abusive behaviour. The information should be on record with the Committee on how often the offence has been used.

That is in the current sphere. If the vagrancy legislation is repealed, there may be an uptick in the offence if the police are not able to use other means if someone is being aggressive, harassing or threatening someone. You may find that the police fill the gap with the offence that already exists.

Mr McGlone: Thank you.

Ms Egan: I was going to ask about Professor Brown's amendment, but it has been well covered. Lorraine has been clear that it will continue to criminalise and, in the Department's view, marginalise people who are homeless and begging. I appreciate that, and I have no further questions because you have been so clear about that. The Committee has discussed the matter before, and I urge everyone to be compassionate when they talk about homelessness and begging because we are talking about vulnerable people.

Ms Ferguson-Coote: It is important, and that is why we consulted. Ordinarily, we would not carry out a consultation on a repeal, but this was too important. It was really good that we had a response from Professor Brown, but, in this instance, we do not support his proposal.

Ms Egan: Thank you very much.

The Deputy Chairperson (Ms Sheerin): There are two more planned amendments that we have to cover. Do members have any comments on those amendments? The responses to both amendments were fairly positive, as outlined. Are there any further questions or comments?

Mr Laverty: On anything? [Laughter.]

Mr McGlone: That is one invite that you do not want to throw out. [Laughter.]

Mr Laverty: As I heard myself saying that, there was a voice in my head saying, "Shut up, Andy". [Laughter.]

Ms Ferguson: I want to ask about the planned amendment in relation to serious organised crime. How will the proposed amendments ensure that children who have been exploited or coerced by criminal gangs are not criminalised by the proposed offences? You mentioned the other statutory defences that a child can avail themselves of. Is there not a better way of doing it so that the Bill makes it clear that they will not be criminalised?

Ms Debbie Corry (Department of Justice): We discussed that point extensively with our operational partners when we were drafting the clauses. We went back to other jurisdictions recently in order to check the position with all of them. They came back to confirm that children are not excluded from their legislation. I just want to be clear about that.

We are alert to the harm caused by organised crime and the seriousness of that offending. We are slightly concerned that, if we were to exclude children, they could be coerced or exploited into carrying out activities by those who are directing them. We do not want to create something that allows others to encourage children to offend in order to evade prosecution themselves. We spoke to our colleagues in the Public Prosecution Service, who are adamant that there are safeguards in place. The PPS will take that into consideration when building a case. There is an independent prosecutorial decision-making process, as well as a public interest test. The PPS factors all of those things into its considerations.

There are other mechanisms coming in that may provide additional safeguards. For example, colleagues are working on the child criminal exploitation offence, which may help to provide safeguards. That offence will be included in the Crime and Policing Bill by way of a potential legislative consent motion (LCM). In addition, there are defences, such as the common law defence of duress, that could be used. There is also a statutory defence under trafficking legislation that could be used for children under 21 in specific circumstances. Again, we are working closely with our operational partners, and we will develop guidance to ensure that there is robust reference to this and there is a consistency of approach in all cases. We want to engage not only with our operational partners but with the wider community and voluntary sector to make sure that, when the guidance is being developed, it is reflective and that there are protections in place for children.

We discussed that when the definition linked to the offence was being created. That is one of the reasons why we have it linked to an offence carrying a sentence of four years or more. That is so that children will not get caught up for low-level offending; it has to link in through that. We are mindful of that. We will build on that, and we will look at it again when we develop the guidance. We do not want to put anything in place that could, as an unintended consequence, create a loophole whereby children could be exploited in another way.

Ms Ferguson: Thank you. It is really satisfying to hear that. I fully understand that there could be unintended consequences that could make things worse. I really appreciate that there will be guidance. Although there is a range of options, it can get quite messy to navigate any potential loopholes. The ideal is to have guidance so that there is a consistent approach.

Ms Corry: It is something that our operational partners are keen on. We want to ensure that there is consistency of approach. Hopefully, guidance will negate unintended consequences. We will keep the Committee informed as we develop it.

Ms Ferguson: Thank you.

The Deputy Chairperson (Ms Sheerin): At this point, we can conclude the session and let you go. For clarity, the next item of business is consideration of a RaISe paper about legal aid or taxing. I was talking about it earlier.

Mr Laverty: We have not yet seen that paper, so I guess that we will take receipt of it from you. I will alert policy leads to the fact that it is coming, and we will get you a detailed written response.

The Deputy Chairperson (Ms Sheerin): The Committee might agree that we ask for a further presentation on that.

Mr Laverty: I was going to say that those officials can be made available at the soonest opportunity.

The Deputy Chairperson (Ms Sheerin): I was completely confused there. I was thinking, "Am I doting here?".

Mr Laverty: You were obviously working to an agenda that I was unsighted on. Chair, we will leave on a high note, which is lovely. Thanks to Debbie.

To follow up, we will send you back the completed table with the outstanding issues addressed. Another action point that I will take away is to share the amended draft of the AccessNI clause with the change from negative to affirmative.

The Deputy Chairperson (Ms Sheerin): Yes. That is not the amendment that I was talking about. I got completely confused there.

Mr Laverty: Thank you very much. We appreciate your consideration of all those issues.

The Deputy Chairperson (Ms Sheerin): Brilliant. Thank you.