Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I welcome to the Committee from the Department of Justice, Dr Veronica Holland, deputy director of the rehabilitation and reducing offending division; Jenny McAlarney, policy official in the reducing offending division; and Andrew Laverty, Bill manager. This is your second stint in a row, Andrew.

Mr Andrew Laverty (Department of Justice): Yes.

The Chairperson (Mr Frew): You are a glutton for punishment.

Without further ado, Veronica, do you have an opening statement, or do you want to go straight to questions?

Dr Veronica Holland (Department of Justice): We will let you go straight to questions, if that is OK.

The Chairperson (Mr Frew): Thank you very much for that. I really appreciate that. You do not know how much I appreciate that. [Laughter.]

We are discussing Part 2 of the Bill. You will have heard our commentary and debate about including "vulnerabilities" in the relevant part of clause 4. How do you see the vulnerabilities and best interests of the child aspect of the Bill?

Dr Holland: We are of the view that "vulnerabilities" would likely be captured by "needs". It is not necessarily an additional provision that is needed, but, if it were to be included, we would have no material concerns about that. As a Committee, you are coming at it from the perspective of wanting to visibly strengthen the provisions. The provisions more generally are "must have regard to". Our sense is that including "vulnerabilities" would not necessarily create difficulties operationally. We, as a Department, would not necessarily include it, but we do not see it being problematic.

The Chairperson (Mr Frew): Clause 4 refers to:

You may have been asked this before, but how does a custody officer measure maturity?

Dr Holland: In the provisions as they are set out, it is about having "regard to" the information that is available to the officer. We are of the view that that puts in statute something that officers already do daily. It is looking at it from the perspective of what is apparent to the officer from the information at hand; it is not looking at it in the context of officers undertaking any detailed assessment of an individual. We view that very much as reflecting what officers do daily and the things that are apparent to them in their engagement with such individuals.

The Chairperson (Mr Frew): Given what you have just said, what about amending that to include the word "vulnerabilities" so that the custody officer would take consideration of:

Would you be open to such an amendment?

Dr Holland: As I said, the Department thinks that "vulnerabilities" would be captured under "needs". We would not have any objections to that being brought within the scope of the provisions, but we are of the view that it is not needed.

The Chairperson (Mr Frew): OK. I have two more questions. For youth custody and supervision orders, you put in an age of 14. New article 38A:

Why is it 14?

Dr Holland: Jenny, you will keep me right on this. The provisions in the orders for those aged from 10 to 13 were never commenced.

Ms Jenny McAlarney (Department of Justice): No, those are custody care orders.

Consultation was carried out in 2014 on the development of a new order. The responses to that consultation were very much in favour of restricting the new order to people aged 14 or over. That reflects what happens in practice. In the past five years, only one child under the age of 14 has been sentenced to a juvenile justice centre order, so they are rarely handed down. Our view is that, if a child under 14 commits a offence that is minor enough not to attract one of the bigger custodial sentences, they should be sentenced to a community order and should not be in custody. That is why the new order will apply to those aged 14 and above.

The Chairperson (Mr Frew): So it is age-specific; it is not about the criminal age of responsibility.

Ms McAlarney: It really just relates to custodial orders for minor offences.

The Chairperson (Mr Frew): OK. Would you take any offence, if you like, if that were changed by taking out "aged 14 or over" and putting in the "the age of criminal responsibility"?

Ms McAlarney: I am not sure that an age is specified for the existing juvenile justice centre orders, because it is assumed that it is the age of criminal responsibility. The Department very much supports the fact that it is "aged 14". It is our position that a child under 14 should not be sentenced to custody for fairly minor offences, because the evidence shows that the younger you are when you are introduced to that sort of environment, the more likely you are to reoffend and end up in custody as an older teenager or young adult.

Dr Holland: That reflects the thrust of the Bill more generally in trying to ensure that the youngest children are not drawn into the criminal justice system any earlier than is needed and that there are more appropriate and child-responsive ways to deal with the behaviours.

The Chairperson (Mr Frew): Explain this to me again: what are the youth custody and supervision orders intended to do?

Ms McAlarney: They will become orders that are most commonly handed down to juveniles. At the minute, most juveniles get juvenile justice centre orders, but we are doing away with those to ensure that children under 18 are never sent to an adult facility. The juvenile justice centre order and the young offender centre order are age-specific, so we had to do away with both in order to prevent children under 18 from being sent to an adult facility. The easiest way then was to create a new order. In creating the new order, which very much mirrors a juvenile justice centre order, we made a few changes based on the consultation responses.

The Chairperson (Mr Frew): If that goes through, what will happen to a child aged 13?

Ms McAlarney: If a child who is aged 13 commits an offence that is not serious enough to attract one of the bigger custodial sentences, such as would be attracted by an offence under article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998 or articles 13 or 14 of the Criminal Justice (Northern Ireland) Order 2008, they would be sentenced to a community order, instead of going to custody.

The Chairperson (Mr Frew): They would get a community order, but, if they were 14 or over, they would get a youth custody and supervision order.

Ms McAlarney: They would not necessarily. They could get a community order, but there would be the option of a custodial order, whereas that option would be removed for an under-14.

The Chairperson (Mr Frew): OK.

Dr Holland: That ties in with the more general thrust of the Bill. We are not in any shape or form saying that the behaviours would not be dealt with; we are just trying to ensure that they are dealt with in the most appropriate fashion. If there are community provisions, those should be used for younger children, if that is appropriate. It is about trying to ensure that a range of options are available to the criminal justice system to deal with those individuals, depending on the nature of the behaviour.

The Chairperson (Mr Frew): OK. Emma is next.

Ms Sheerin: You have covered my point, Chair. I was going to ask about "vulnerabilities", but you have covered it.

Mr Kingston: I want to ask about clause 8 and when a custody officer can and cannot release on bail a juvenile who does not have adequate or suitable accommodation. The Committee was told that that clause will not be commenced at this time. Will you clarify the Department's position? Will that clause remain in the Bill? If it will not be commenced, what would have to happen for it to be enacted?

Dr Holland: One issue with commencing that provision is ensuring that suitable accommodation is available for those individuals. The intention is that clause 8 will be commenced at a later date. We were keen that the provisions remained in the Bill and that we did not have to wait to introduce them in the next mandate, which could be four or five years away.

Discussions on the accommodation aspect are ongoing with Health. Ultimately, provision of that accommodation is the responsibility of health trusts. We previously indicated to the Committee some of the options that are in place and are being looked at. A bail fostering scheme is in operation in and has been mainstreamed by the Southern Trust. We have ongoing engagement and discussions with health trusts about the potential for that scheme to be rolled out to other areas and will meet them next week to discuss that. We are conscious that a number of conversations have to be undertaken for that provision to be commenced. What we did not want was to lose the provision and, potentially, have to wait years before it could be brought in.

Mr Kingston: Would it be at the discretion of the Department or the Minister to commence that provision, or would it have to go back to the Assembly?

Dr Holland: It would be done by way of a commencement order in due course. As part of the process, we would engage with the Committee and advise it on what was undertaken to enable the provision to be commenced; what the processes and provisions looked like; and what engagement there was with Health. The Committee would be very much part of any future stages of that, but it would not need to come to the Floor of the House.

Mr Kingston: It would or would not?

Dr Holland: It would not; just a commencement order would be needed. The secondary legislation would be relatively straightforward. However, as I said, we would want to engage with the Committee before the provision was commenced.

Mr Kingston: We have discussed this before, but there is a concern about a situation where a custody officer acts in good faith and with concern for a child's welfare and well-being when bail comes through in the middle of the night but the child or their legal representative insists that they must be released. Clause 8 states:

If, in good conscience, the custody officer does not want to release the child on to the streets late at night or in the middle of the night, they could be committing an offence by not doing so. Is there still sufficient cover for a common-sense approach?

Dr Holland: As part of any future process for the commencement of that provision and the provision going live, we would want to ensure that a range of accommodation options are in place for the child.

Mr Kingston: At a statutory level.

Dr Holland: Yes. As I said, that aspect is very much the responsibility of the Department of Health and the health trusts.

Mr Kingston: The clause states:

It is a concern that we discussed before: the need for some discretion for practicality.

Ms Sheerin: We talked about potentially adding a new clause to the Bill to state that all actions must take the best interests of the child into account: is that covered?

Dr Holland: We touched on that issue.

Ms McAlarney: Yes. We, too, wanted that included when we started drafting instructions to the Office of the Legislative Counsel (OLC), but OLC advised us that, because there was already an overarching principle around the best interests of the child, that must be taken into consideration in any dealings around youth justice — that all youth justice organisations must take that into account. That is an overarching principle that cuts across the whole of youth justice already, and OLC's view is that provisions that are already in other legislation should not be replicated.

Ms Sheerin: OK. I want to revisit the clause that Brian touched on around a lack of appropriate accommodation.

The Chairperson (Mr Frew): Clause 8.

Ms Sheerin: Yes. There is no resource for that. We were talking about tabling an amendment to ensure that a child cannot be denied bail because of a lack of accommodation.

Dr Holland: Are you thinking about what the timing of that may be, when we may be in a position to bring that forward and what would be needed to facilitate it?

Ms Sheerin: Yes.

Dr Holland: The Department of Health and the trusts lead on and have statutory responsibility for the provision of that accommodation. Therefore, that will, in part at least, be driven by Health's ability to bring forward changes in relation to that. As I said, a number of aspects are being looked at. The bail fostering scheme has started. It is not feasible, at this point, to have a single facility that deals with children who may need that accommodation, just because the numbers that that would involve would be quite small and because of the dispersal across Northern Ireland. We continue to have discussions with Health about how best we can get that progressed, so that we can reach a point at which the provisions could be commenced.

Ms Sheerin: OK, so we are sort of in no man's land with that. It is an issue of practicalities, and there is no point in tabling an amendment if it will not be realised.

The Chairperson (Mr Frew): That raises this question: were we to put a timescale on commencement, would that be unfair on the Department?

Dr Holland: There are limitations on how much the Department of Justice can move that forward. We will continue to have discussions and engagement with Department of Health colleagues. Ultimately, however, the solution that will enable us to commence that will largely rest with Health. It is outside the gift of Department of Justice officials. The difficulty is that, were a time-bound period to be put in, we could, technically, end up in breach of legislation. Let us say, for argument's sake, that a time frame were put in that it had to be commenced within a 12-, 18- or 24-month period or whatever it may be: we may not be able to deliver on that.

The Chairperson (Mr Frew): I am blue-sky thinking, but, given the letter that we received from the Health Committee on the new regional children and families' services authority, would it be in order that we would put a duty in the Bill that that be its first aim and objective?

Dr Holland: Jenny and I had conversations earlier. While they are connected, they are two separate aspects: one is around the agency or authority that is being set up, and the other is the accommodation issue and what was touched on around a single location or campus that might provide something like this. The two do not necessarily go hand in hand. We would probably still come up against the same issues of how quickly the health trusts and authorities would be able to move on that.

The Chairperson (Mr Frew): OK.

Ms Sheerin: My last question is about the threat to public order, which relates to both the child and the community. Will the Department issue guidance around how that will work in practice? We have had conversations before about that judgement call.

Dr Holland: As you say, the police's deliberations more generally and those on the applicability of those provisions to the child will take account of both perspectives: the potential response of the community and the potential actions of the child. That will be part of the police's considerations more generally and as regards how an individual child is to be dealt with.

Ms McAlarney: That provision applies to the courts as well as to the police. For the police, it is only in relation to bail conditions and not on whether they can deny a person bail. It is not as serious, therefore, for the police. Courts have two tests. The first is whether the offence meets the threshold for a custodial sentence. If it does not, the child will have to be released whether or not there is that threat to public order. Secondly, the court has to take into consideration whether that threat can be managed in the community with other conditions having been put in place. The guidance that we are developing to go alongside the legislation will clearly set that out and emphasise the fact that, even if conditions are put in place around the fourth bail provision, it should be for only as long as the threat exists and then has to be removed and reviewed.

Dr Holland: Our sense is that there will be fairly limited circumstances in which those provisions will kick in, because, as Jenny said, there are other hurdles to be got over or tests to be met before you reach the position where that would be considered.

Ms Sheerin: Thank you.

The Chairperson (Mr Frew): There is the record of decisions concerning bail. When a judge refuses to release a child, the child, if they request it, can get a copy of the record on why they were not released. How would a child know to do that?

Ms McAlarney: To be honest, we hope that they should not really need that. The child will be in court and hear the argument, and the solicitor will then explain to the child why they have not been granted bail. It is just an extra measure whereby, if somebody wanted the record, it would be made available to them. They will be fully aware from listening to the argument. The judge will always set out clearly why bail has been refused, and a solicitor will be on hand to explain it. If a child goes to custody, Youth Justice Agency (YJA) staff will also speak to them straightaway about bail: why they have been refused bail and what they can do to try, at the next bail hearing, to get bail.

The Chairperson (Mr Frew): I understand that bit. In the court setting, the judge will lay it out. The child would hear it, whether or not they understood it, and the solicitor or barrister will be there to represent them and advise. However, the provision is that, "if the child requests it", they can get a copy of —

Ms McAlarney: The bail decision.

The Chairperson (Mr Frew): — the bail decision. How will a child know that they can get a copy of it?

Ms McAlarney: We have not really discussed that. The child's solicitor could make them aware that they are entitled to it if they want it.

Dr Holland: Yes, it would likely be through a legal representative.

Ms McAlarney: I would say that it would rarely be needed.

Dr Holland: It would probably be done through a combination of conversations that the legal representative and those in a caring capacity — the child's parents or guardian — have with that person.

Ms McAlarney: The guidance that we issue will cover all the clauses. It will be sent to all the relevant agencies such as the Youth Justice Agency. Anybody who is engaging with the child in that kind of capacity will be aware of that and able to advise them.

The Chairperson (Mr Frew): It prompts this question: what advantage does it give to the child to have a copy of the reasons why they were refused bail?

Ms McAlarney: The bail report and the United Nations Convention on the Rights of the Child (UNCRC) recommendations say that children should be involved in decisions that are relevant to them and should be made aware of and be entitled to receive any information on their case. It was really just to put that in statute.

The Chairperson (Mr Frew): OK. I have one other question. How would you feel about an amendment that brought in a mechanism for review of the use of youth custody and supervision orders?

Ms McAlarney: We would have no objections to that.

Dr Holland: With other legislation, the Department typically does something like that as part and parcel of the policy-making process. That would be undertaken in any event. In our view, it is not necessary to have that included on a statutory footing, but we would have no objections to it.

The Chairperson (Mr Frew): What timescale would be fair in your eyes?

Ms McAlarney: Three years is fair enough.

Mr Laverty: That would certainly be consistent with similar mechanisms in the Protection from Stalking Act 2022 and domestic abuse and coercive control legislation. At section 20 of the Stalking Act, for the first report, it is no sooner than two years and no later than three years from the point of introduction and then three years subsequently up to a maximum of 10 years. There is a sunset clause or provision whereby, after 10 years, that reporting requirement can be curtailed.

The Chairperson (Mr Frew): OK. Thank you very much. There are no other questions. Is there anything that you want to add or put to us, having heard our deliberations over the past number of weeks? That may be a bit scary; perhaps that is a bad question to ask you.

Ms McAlarney: I have nothing.

Dr Holland: There is nothing from my perspective.

The Chairperson (Mr Frew): We will engage in writing. Would you consider putting in amendments on review of the order?

Mr Laverty: We would take the Minister's view on that. I do not think that OLC colleagues would consider it beyond their capacity, because they were largely responsible for the Stalking Act review mechanism. The content of the review mechanism would be shaped by the information that you would want to have available. A concern with the stalking review mechanism was that a lot of the requested information would never be readily available without significant additional cost and new IT systems. It is about managing expectations around what is useful for the Committee's review and purposes but also making sure that the reporting requirement does not become overly onerous on the organisations that operate it.

Dr Holland: Does the Committee have a sense of what it would want any amendment to look like? Will it simply be that a review is undertaken in three years, five years or whatever time frame? Will anything additional be needed?

The Chairperson (Mr Frew): We will write formally, so that it is fair on you guys. We take the point about what information would be required for that review and about not being unrealistic and making it overly onerous for the relevant organisations.

Dr Holland: That would be helpful.

Mr Laverty: The responsibility for charges, convictions and detention sentences falls on our operational colleagues. With the Causeway system, there is a lot of information out there, but, if someone wants information about something that they have a personal interest in, that might not be readily available.

The Chairperson (Mr Frew): OK. Thank you very much for your time.