Official Report: Minutes of Evidence

The Chairperson (Mr Frew): Lisa Boal, head of the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) policy and legislation branch, is present at today's meeting to provide further information or clarity on any matter that Committee members may wish to raise.

Thank you very much, Lisa. You are welcome to the Committee again. Do you have a presentation to give?

Ms Lisa Boal (Department of Justice): No, Chair, I have nothing to add. I am happy to respond to any queries that members may have.

The Chairperson (Mr Frew): OK. I will start. First, I acknowledge the progress that has been made. I applaud the clarification provided in new paragraph 5 in annex L, which goes into detail about the searches and who will conduct them, and the fact that it states:

"must be recorded" is highlighted in bold and underlined —

I also place on record the advancement made on incorporating the interim guidance from the National Police Chiefs' Council (NPCC) into the revised annex L and the new draft note. In that guidance, it is clear not only that there will be no detriment to the career of an officer or a member of staff for refusing or not consenting to conduct a search on a detainee who is trans but that there will be no detriment to a trans officer.

While we note the progress, we — by "we", I mean my party colleagues and me — are still concerned that the Department of Justice still cannot state, even in the draft note that sits alongside the PACE codes, that there will be no detriment to the career of a police officer: why is that, Lisa? Given that we go into detail on the recording of the search and its being consensual, which, I believe, is an operational matter, why can we not add a line to paragraph 5 of annex L stating that there will be no detriment to the career of an officer or a member of staff? Why can we not just lift what is stated in the NPCC guidance and insert it in paragraph 5?

Ms Boal: We cannot put it in annex L because annex L is to the PACE codes on the treatment of individuals held in custody. We could include it in the draft note to be published alongside the codes, if that would help.

The Chairperson (Mr Frew): Can we do that?

Ms Boal: Yes.

The Chairperson (Mr Frew): How would that read?

Ms Boal: I would need to work on a draft to get the flow of the paragraph. We can look again at the draft note and take on board any comments from members. We are happy to do that.

The Chairperson (Mr Frew): There is terminology about there being "no detriment" to officers — it does not even have to say "female officers"; it can simply be "officers" — if they do not consent to a search. Even not having seen the text, I think that my colleagues and I would be content with that.

Ms Boal: We can include wording to that effect in the draft note that will be published alongside the PACE codes.

The Chairperson (Mr Frew): That will be published alongside annex L, which will be published alongside the PACE codes.

Ms Boal: Yes. All will be published together.

Mr Beattie: You talk about the notes, which are notes for guidance, yet PACE code C clearly states:

Can you clarify that for me? A note is guidance and therefore will not be included in the codes.

Ms Boal: Yes. We will publish a note alongside the PACE codes to explain where we are and how we are responding to the Supreme Court judgement, but even the notes for guidance in the PACE codes are notes for guidance about the application of the PACE codes and how they relate to individuals.

Mr Beattie: The notes for guidance will not form part of the codes, however. They are only guidance, and guidance is not included. It is just that the language seems a bit ambiguous to me.

Ms Boal: I am saying that the note that we will publish alongside the PACE codes will make reference to the NPCC guidance, which is that there will be no detriment to police officers.

Mr Beattie: I will need to see it in order to understand it, because, at the moment, I do not. Thank you.

The Chairperson (Mr Frew): To clarify Doug's point, Lisa, are you saying that it will not just refer to the NPCC guidance? Rather, the terminology will be included in the note.

Ms Boal: Yes, it will be in the note that we will publish alongside the PACE codes guidance. We have shared the draft note with the Committee. It is appendix 1. Where we have said that the PSNI has adopted the NPCC guidance, we will state that that makes it clear that any officer who does not consent can do so without there being any detriment to their career.

The Chairperson (Mr Frew): Ciara, do you want in?

Ms Ferguson: I want to reiterate that we, as a party, do not accept PACE codes H and I, which concern detention and the questioning of detainees. They refer to draconian legislation that comes from Westminster, and we believe that it is in breach of detainees' human rights. We have stated that before, but I put it on the record again.

The Chairperson (Mr Frew): No problem.

Following the point that Doug raised, I will ask another question. If the courts are looking at legislation, they can also look at its explanatory memorandum.

Ms Boal: I think so, yes.

The Chairperson (Mr Frew): What weight would a note for guidance have in, say, a court of law if a challenge were made?

Ms Boal: To be honest, I am not sure. That would be a matter for the judge. There is obviously judicial independence. I cannot comment on that. It is not my area of expertise.

The Chairperson (Mr Frew): Doug, do you want back in?

Mr Beattie: Fundamentally, that is the problem that I am talking about, Chair. Paragraph 1.3 of code C states:

We are talking about adding the NPCC guidance as a note for guidance, but that paragraph states that PACE codes do not include notes for guidance. For me, a judge would therefore be able to disregard the guidance.

Ms Boal: We are not adding the NPCC guidance as guidance. In the note that we will publish alongside the codes, we will explain that the PSNI has adopted that guidance and that it makes provision for there to be no detriment to an officer's career.

Mr Beattie: Yes. I guess that you could remove the words "for Guidance" from PACE code C and have just have the word "Notes". Notes will not be part of the code, however.

Ms Boal: The notes will be there to aid interpretation of the content of the code.

Mr Beattie: I will be honest, Chair. I am finding it really hard to explain myself.

The Chairperson (Mr Frew): The note for guidance is not included in the text of the law; it is adjoined to the law as guidance for interpretation. That is how I see it.

Doug, you are right to question the greyness of the area, and you mentioned paragraph 1.3 of PACE code C.

Lisa, it would be helpful to get reassurance on Doug's point, but I note the progress that has been made. You have understood all along our concerns for the police officer. If someone is detained during a busy shift and needs to be searched, there has to be consent from all parties, including the detainee, the duty officer and the person conducting the search. If, however, the detained person is trans and they want to be searched by someone from their lifestyle, if there is only one female officer in the station, immense pressure could be put on her to conduct the search. That is why we have taken a strong stance on the detriment piece. With the best will in the world, while someone cannot be made to do something — the NPCC states that — the pressure that will be brought to bear on the individual to conduct the search could be mighty.

Ms Boal: I share that concern.

The Chairperson (Mr Frew): OK. Members have no further questions.

Thank you, Lisa. I hope that we have clarified our position both as a Committee and as individual members.

Ms Boal: The next step is for the Department to come back with a revised draft of the note for a decision.

The Chairperson (Mr Frew): Yes. We look forward to seeing it. Thank you, Lisa.

Ms Boal: Thank you.