Official Report: Minutes of Evidence

The Chairperson (Mr Frew): Providing evidence today are Siobhan Casey, Commissioner for Older People for Northern Ireland; Anna Doran, policy and research officer; and Raymond Johnston, legal officer.

Commissioner, you are very welcome. I introduced you to the members before you came in. I thank you, and Anna and Raymond, very much for being here. You are very welcome to the Committee to give a presentation and answer our questions on this important Bill. We appreciate your attendance, so, without further ado, if you have an opening statement, that would be great.

Ms Siobhan Casey (Commissioner for Older People for Northern Ireland): Good afternoon, everybody. With me today is our solicitor, Ray Johnston, and our policy officer, Anna Doran, who prepared all the materials that the Committee will have read to date. We are pleased to be here to discuss the Criminal Justice (Sentencing etc) Bill, particularly its new hate crime aggravator model. As Commissioner for Older People, my role is to safeguard and promote the interests and rights of older people. Part of my role is to offer advice to government when those rights and interests are not being adequately protected, which is why I am here today.

During the session, I will present my submission supporting the inclusion of age in the protected characteristics in the Bill. I will explain why the vulnerability aggravator alone is not sufficient to afford older people protection and how deferring this issue to secondary legislation would be yet another example of slow legislative change for older people in Northern Ireland.

I will start by outlining the context of our ageing population. I know that the Committee will know about that. For me, the standout quote on ageing is that we are in a situation that is:

Northern Ireland is not excluded from that. As of 2025, there were circa 484,000 people aged over 60 in Northern Ireland. It is predicted that that number will increase to 660,000 by 2055.

My office and previous commissioners have consistently called for greater planning for the consequences of an ageing population. You will see our report on that coming out in a couple of weeks' time. As we have seen in our health and social care services in particular, an ageing population risks overwhelming public services if the challenges that it presents are left unaddressed. The situation is no different with the criminal justice services, because older people are likely to represent a larger proportion of victims of crime, meaning that there will be an increased demand for justice services and provisions that address the distinct and diverse needs of older people. That demographic shift demands that the justice system be more responsive to those needs and reinforces the importance of ensuring that legislation such as this Bill is robust in recognising and addressing the harms experienced by older people.

Why are we asking you to ensure that age is a protected characteristic in the Bill? Why is it relevant? Over the years, my office has maintained that older people must be encompassed in the development of hate crime protections. The Committee will recall from our written submission that we set out a detailed justification of the inclusion of age as an aggravator. I will touch on some of the issues included there. In June 2019, the Department of Justice announced an independent review — the fact that it is an independent review is important — of hate crime legislation in Northern Ireland. That was conducted by Judge Desmond Marrinan. He published his report in December 2020. Of particular interest to our office was Judge Marrinan's recommendation that age should be added as a protected characteristic to hate crime law here. It is disappointing, therefore, that age has been omitted from clause 33, which sets out in detail the protected characteristics. That is particularly relevant when compared with Scotland, given its similarities to Northern Ireland. Scotland is an example of a jurisdiction in which age is now included as a protected characteristic. There will have been the same scepticism in Scotland about evidence of age hate crimes, but it is notable that, since being included in the legislation there, Scottish police have recorded 48 hate crimes that were aggravated by age, and 86% of those victims were aged 60-plus. That is clear evidence that age-based hostility can be recognised in legislative frameworks and that such crimes have been identified and recorded because of the inclusion of age as a protected characteristic.

I know that the Committee will have questions about Northern Ireland-specific evidence. One of the main points of opposition that we heard to the call for age to be added as a protected characteristic is that there is a lack of evidence for the existence of age-based crime here. That might not be surprising, given that there is an absence of officially recorded statistical evidence, leading to the notion that such crimes or incidents do not exist. That is because the PSNI does not currently include age in its hate-motivated statistics. That has created a vicious circle whereby the absence of evidence is, in part, a consequence of not recognising age as a motivating factor. However, the key point is that absence of evidence is not evidence of absence of age-based crime. We must remember that the law shapes the data, not the other way around.

Our position is, therefore, that adding age to clause 33 as a protected characteristic would put older people on an equal footing with individuals who belong to other protected groups for the aggravation of hostility. The Bill states:

a protected group, or:

Demonstrations of hostility can be evidenced through language, actions or patterns of behaviour before, during or after a crime. Research for COPNI's 'Are you ageist?' report, found that half of older people in Northern Ireland have experienced some form of ageism. I am in no doubt that older people across Northern Ireland are experiencing demonstrations of hostility towards their age, perhaps in the form of verbal abuse or ageist remarks. Of course, that does not mean that all the accounts of ageism amount to a crime aggravated by hostility. Ultimately, for a suitable conviction, the court must find that the charge and aggravation are proven.

In the evidence that we submitted, there is an example from earlier this year. It was reported that, while a perpetrator was waiting for a lift to court for other offences, he hurled abuse and demanded of a woman getting out of the lift, "What are you looking at, you dirty old", and I will not go into the rest of that. He then grabbed her and pulled her to the ground. If age is added to clause 33, that type of offence could be recognised as aggravated by hostility to age.

Despite no inclusion of age as a protected characteristic at clause 33, age features to some degree in clause 36, which states:

The clause also states:

We fully welcome the introduction of the vulnerability aggravator, as it may provide protections for some older people who may be viewed as easy targets. However, for those of us in the room who are over the age of 60, it is important to consider that older people are a diverse group; not a homogeneous group. Many of us are robust, independent and resilient, although some of the group may experience increased risk to certain forms of harm, exploitation and victimisation. We stress that the propositions are not contradictory. However, they demonstrate why vulnerability alone cannot be a substitute for the inclusion of age as a protected characteristic. The vulnerability aggravator addresses impairment and a susceptibility to harm, but the hostility aggravator addresses prejudice, discriminatory attitudes and targeting linked to the group identity. Those two concepts are legally and conceptually distinct.

In summary, I welcome the introduction of the Bill and its hate crime provisions. However, to provide older people with robust protections, age must be included in the protected characteristics at clause 33. While the vulnerability aggravator will protect some older people, the inclusion of age among the protected characteristics would extend legal protection to a much larger proportion of older people.

The Bill as introduced already contains the legal architecture necessary to recognise and include age-based hostility. The omission of age as a protected characteristic is, therefore, a matter not of feasibility but of policy choice. I appreciate that clause 35 is an attempt to future-proof the Bill by giving the Department of Justice power to:

I am concerned, however, that any suggestion to defer the inclusion of age to secondary legislation risks leaving older people without protection for an extended period, especially given the forthcoming election. Ultimately, the issue is whether you, as our leaders in government and legislative change, are prepared to take steps to reduce the frequency of crimes against older people and the impact of crimes on them.

There is a quote that from the Organization for Security and Co-operation in Europe that we want to stress:

Hate crime laws express the social value of inequality but also foster the development of those values, so I strongly advocate that you demonstrate those values by including age in the list of protected characteristics. I respectfully invite the Committee to give that careful consideration and to recognise the importance of urgently addressing the proposed omission of older citizens from vital legal protection.

We are happy to take your questions.

The Chairperson (Mr Frew): Thank you very much for that, Siobhan, and for being concise. You are talking about Part 6, and, more particularly, clauses 33 and 36. It strikes me that aggravation by reason of vulnerability may be far easier to prove than aggravation by hostility, for the reasons that I will outline. Clause 33(2)(a) states that you need:

demonstrate

Therefore, in clause 33, "Aggravation by hostility", you have to prove:

that offence. That will be hard to prove, and, according to the way that it is written, you will not be able to go through somebody's Facebook page and see a post a week before stating that they hate all sorts of people. That clause reads to me that such a post could not be used if it was not posted at the time of committing the offence or immediately before or after doing so.

Is it not a bigger win to have age as an aggravator by reason of vulnerability? That should encapsulate everyone in old age, whatever "old age" means.

Ms Casey: Interesting. Thank you for your question. Our point is that age and vulnerability are not the same.

The Chairperson (Mr Frew): No.

Ms Casey: The Bill recognises vulnerability, and we welcome that, but it does not recognise that someone can be targeted or subjected to hostility simply because they are older. Therefore, older people should be protected when they are targeted because they are vulnerable but also when they are targeted because they are older. It is important to distinguish between the two. Not all older people are vulnerable.

The Chairperson (Mr Frew): That may be why clause 36 refers to "old age" as opposed to "aged" or "age". Everybody has an age, but not everybody is in old age. I think that they have tried to include age. Clause 36, "Aggravation by reason of vulnerability", started off, we believe, covering age but then spread out and became much wider. It strikes me that the vulnerability of age is covered adequately by clause 36(2), which states:

Most people can recognise an older person, if you know what I mean. I think that it will be much easier to prove an offence under clause 36 than under clause 33. I hear what you say: having it in clause 33 would be an expression of society's values. I get that 100%. However, given the fact that, as I said, everyone has an age, age is not a minority in the same way as some of those other named groups. Is it not adequate and maybe more beneficial to have it in clause 36, or do you really need to include it in clause 33?

Ms Casey: First, if vulnerability is interpreted narrowly, many older people who are targeted because of age will fall outside the protections in the Bill. On the inclusion of all ages or shifting it across, everybody has an age, but not everyone is targeted because of their age, so the legislation would not criminalise someone simply because an offence was committed against a person of a particular age. The relevant test would still be whether hostility towards the victim because of their age was demonstrated and whether it motivated the offence. Take the example of the lady who came out of the lift: was there anything to say that she was vulnerable? She was a person coming out of a lift, but the hostility was related to age. That was reflected in what was said.

I will call on my colleagues to see whether there are any other comments.

Mr Raymond Johnston (Commissioner for Older People for Northern Ireland): If I may, I will make a couple of points in respect of that. First, given the framing of your question, I suggest that there is perhaps a little bit of an inconsistency in the Bill. For example, the Bill's approach to age is inconsistent with the treatment of disability, which, in clause 33, features as a protected characteristic. However, in clause 36, the Bill recognises that disabled people can be targeted because of their vulnerability or perceived vulnerability. Our question for the Committee, therefore, is this: why would you choose to treat older people differently from in the example set out in the Bill?

Secondly, on your reference to the wide range in age, absolutely, everyone has an age, ranging from low to high. I know that, in Judge Marrinan's report, that point, as opposed to protecting just old age, was scrutinised. I direct you to a concise point that Judge Marrinan made in respect of that. He said that he found:

He continued that, while he saw:

Therefore, he felt that it was:

Of course, we are here today to speak on behalf of older people. However, at the same time, given the selection of Judge Marrinan and his expertise to conduct such a report, we believe that sufficient weight should be placed on his recommendations in respect of that point.

I will briefly touch on the fact that, as Siobhan mentioned, vulnerability very much focuses on a victim's inability to protect themselves. The basis of a hate crime is hostility against people who are part of a group rather than simply their vulnerabilities. I appreciate that it can be a wide group, but there can be lots of offences committed against people that are purely offences. Just because an offence is against someone of a certain age does not mean that it has to be a hate crime. For an offence to include aggravation, that component of the crime has to be found in the first instance.

Secondly, there needs to be evidence of hostility. I do not think that it would be a floodgate moment whereby all crimes automatically became hate crimes. The courts are there to dissect the evidence and come to decisions. That is why we put forward our view that age deserves a spot as a protected characteristic.

The Chairperson (Mr Frew): Thank you. I take your point about the reference to "physical or mental disability or illness" in clause 36 and the fact that it still refers to "hostility related to disability" in clause 33. I get that.

This might sound quite challenging, but I will say it anyway, because it has always been in my mind when we have been thinking about hate crime. You mentioned the example of a lady coming out of a lift and somebody saying, "You're an old —" whatever word you want to use there. Could that simply be a descriptor? What I mean by that is this: if someone is attacked coming out of a lift, and the attacker says, "You baldy so and so" — I will get there myself very soon — .

Mr Kingston: Or "specky".

The Chairperson (Mr Frew): Or "specky". You could use any sort of term, which is not nice; it is derogatory, but it is still a descriptor. It does not necessarily prove hostility. How do you get round that? I believe that that is what they will have to rely on. As for clause 33, it will have to be speech, immediately before or whilst a crime is being committed. You will need to prove that, according to clause 33. Just because an attacker says, "You are an old fart", does that prove hostility towards an aged person?

Ms Casey: I would think that it does. Tolerating that type of ageism is not something that we, as a society, would uphold; none of us would. As I was saying earlier, it is not just language; it is a range of actions. I do not believe that we can say that it is just speech.

The Chairperson (Mr Frew): I used baldness as an example, but I could use skin colour. You could go right through the range, and it would not be nice.

Ms Casey: If somebody says something about race or skin colour, is that not racism?

The Chairperson (Mr Frew): It could be, but it could also be a descriptor. That is the most extreme example, which is why I did not use that; I used baldness. However, that is what you will have to rely on in order to get a conviction or to prove an aggravation under clause 33. Is speech alone sufficient to prove aggravation by hostility?

Mr Johnston: I suspect that further guidance on hostility and how it is used in the Bill might need to be looked at in order to establish parameters. To use your example, when we look at the other groups of characteristics already in the Bill — the top four — there are, I suppose, different ways in which someone could refer to someone's religion. As you say, it could be as matter of fact as saying, "Here, you are a" — whatever religion — and then attacking them. Is that said in a hostile way before the attack? I would respectfully state that the way in which you present the question in respect of older people is true of other protected characteristics. It is more to do with how hostility is interpreted for the purposes of the Bill, rather than that being a reason to deny age being a protected characteristic in the Bill.

The Chairperson (Mr Frew): What I asked you was provocative, but I am teasing this out to see how it would be tested in court, if you know what I mean, and how it would apply in real life.

Mr McGlone: I want to pick up on that. I am coming from having studied Irish and all that. The Irish word "sean" can mean a multiplicity of things — seanathair

this and all that. In Hiberno-English, however, you can have, "that ould fella" or "the ould doll", sometimes. They even use the phrase, "the ould cub", which is a contradiction in terms. However, "ould", as in old, in Hiberno-English, has an entirely different meaning. For example, if somebody points at "that ould boy over there", it does not necessarily mean that he is old. However, in the context, it is the action itself. If you are trying to prove that something was done on the basis of his or her age, in the case of the "ould cub", that would be insurmountable. If you were to take that to court and look at the linguistic elements of it, it would be very, very difficult to prove.

Ms Casey: It is not a crime to call someone an ould fella. We are talking about the hostility element here.

Mr McGlone: Exactly. It does not necessarily follow that because you say, "that ould fella over there" and add hostility to it, the consequence is that hostility is being directed at that man because he is old. It is about the meaning of the word and the context in which it is said. That is particularly the case here, where the linguistic diversity in the derivatives and meanings of words and how they are used can be completely different from, say, in London.

Ms Casey: There are euphemisms, descriptions and so on, but, when you are hurling abuse, there is a difference in tone and behaviour. There is a difference in aggravation, so I think that —.

Mr McGlone: The behaviour is the important bit. The adjective may or may not compound the behaviour, but it may not mean that someone is going at a person because they are old. It is a lexicon. That is where I am coming from, and that is what I have studied. When you are out and about where I come from, those are common usages, but it does not mean that somebody is going after another person because of their age. I am just picking up on your point, Chair.

The Chairperson (Mr Frew): I suppose that we are asking those questions to find out how this would be done in court and how you would apply the aggravator in some of those nuanced cases. That is why I like the idea of clause 36 in some cases: it is more clear-cut to prove vulnerability than to prove hostility towards a certain protected group, if you know what I mean.

Ms Casey: The vulnerability aggravator focuses on a victim's impairment or ability to protect themselves. You are not talking about people's impairment here. You are talking about a hate crime that focuses on hostility based on membership, or presumed membership, of a protected group. That is different.

The Chairperson (Mr Frew): Yes, of course it is.

Ms Egan: My questions are about the aggravators. You referenced Judge Marrinan's review, in which he talked about an aggravator of age rather than an elder-specific age provision. However, under the vulnerabilities in clause 36, "old age" is referenced. Do you think that that should be changed to just "age", or should the vulnerability be "old age" with the aggravator being "age"?

Mr Johnston: We are here to speak on behalf of older people, so "old age" being included as a vulnerability — our office looks at that demographic — means that it is covered in clause 36 as it stands. Clause 33, as Judge Marrinan states, covers a wide demographic. Scotland has introduced it on the same premise that age is a protected demographic. When you drill down into the figures on the percentage of different age groups that have been dealt with and where there have been prosecutions, you find that the high percentage of those are older people. That is maybe the best response that I can offer to that question.

Ms Casey: Based on the all the evidence that we have got from other jurisdictions, Florida is probably the place where you have a definition of "older age". In Scotland, Austria, Canada and New Zealand, it is "age". The Scottish statistics showed that 86% of the crimes in question were against people over 60, but it is interesting to note that the average age of the perpetrators was around 30. We are seeing an increase in that. When we talk about new ageism, we have to be very careful about intergenerational conflict in those areas, insofar as you hear about older people using up all the health budget, taking all the housing or keeping all the jobs. There is an emerging narrative. The Centre for Ageing Better published something last month that said that there is an emerging narrative of a new ageism and that we have to be careful about that. That has been very clear.

I am not disputing the fact that, where this has been introduced, data has been captured. There is evidence of it emerging. We are not talking just about today; we are also trying to future-proof the legislation for tomorrow, given the growing demographic. Even if it is a smaller number than you would expect — it is 0·6% or something in Scotland; it is a small percentage — it is right that those people are protected from crime. We talked about the example of genital mutilation. That has been put in as a crime in England, but there are very few incidences of that being reported. However, that does not mean that it is not a crime. We are asking you to future-proof legislation for what we see coming down the line and on the basis of what has worked in other jurisdictions, such as Scotland. That is where I am coming from.

We are giving you all the evidence so that you can see a wide range of examples.

Ms Egan: You mentioned Florida, and apologies if I missed it in your evidence. In Florida, old age is defined as being over the age of 60. Should old age be clarified when it is included under vulnerability? Should it be clarified that old age means a person over the age of 60 or should it be based on the perpetrator's perception of the victim as someone of old age?

Ms Casey: That is a difficult one.

Ms Anna Doran (Commissioner for Older People for Northern Ireland): Do you mean a definition for the vulnerability aggravator?

Ms Egan: Yes. It is the Bill as "old age" specifically.

Ms Doran: There are a lot of evidential hurdles with the vulnerability aggravator. It is not just about saying that, for example, "A vulnerable person means an older person over the age of 60". The Bill states:

It is not as simple as saying that a vulnerable person is an older person. There are evidential hurdles to reach that point. The court has to prove that the vulnerability is present in the older person and that the offender knew about it or ought to have known about it. I am not sure that a definition of old age would be of benefit, because it is about the offender's perception and then how the court proves old age to have been a significant impairment. Does that make sense?

Ms Egan: Yes. I appreciate that.

Have you had engagement with the Department on the Bill? How has that engagement gone, because age is not included in the Bill as a protected characteristic? Have you engaged with the PSNI? Would it be receptive to recording incidents where old age has motivated the crime?

Ms Doran: We have had engagement with the Department and the PSNI, particularly on data collection. As Siobhan mentioned in her opening remarks, age-based hostility is not currently captured by the PSNI. There is inconsistency because the PSNI records transgender identity hate crimes and that group is also omitted from the Bill. There is a grey area on whether the responsibility for ensuring that the data is collected lies with the Department or the PSNI. There is a notion that the PSNI is not bound to record the data because it is not included in legislation, but, if there is a reliance on a lack of statistical evidence or the statistical visibility of the older victims of crime, how will age be included when the evidence base is not gathered? It is a grey area between the Department and the PSNI.

Ms Casey: The Department recognises that age is an important characteristic to include. However, for expediency, it is using the four protected characteristics that have been used before and will put the others into secondary legislation. Our concern is that secondary legislation will be too late for older people. Crime has a greater impact on the health and well-being of older people than other age groups, and the fear of crime causes anxiety. Older people experience crime in a way that makes it harder for them. When the legal architecture is there, we would like to do it now. There is a recommendation from Judge Marrinan, and the issue is understood. We can see the outcomes in other jurisdictions that have successfully implemented legislation that includes older people. It should not be left to secondary legislation. For the sake of your constituents, you should do it now.

Ms Egan: I appreciate that. Thank you.

The Chairperson (Mr Frew): I will stay on Connie's point, because it is important and fascinating. You have given us evidence about other jurisdictions and countries, such as Scotland, Austria, Canada, New Zealand and Florida. Do any of those jurisdictions have the aggravation of vulnerability alongside their hate crime? It seems to me that most of those countries lump vulnerability into the aggravation by hostility. Would it be fair to say that we are actually more advanced because we are segregating hostility and vulnerability?

Ms Casey: It goes back to the question about whether vulnerability covers all ages and all older people.

The Chairperson (Mr Frew): If you ask for age to be included in the aggravation by hostility, I could also say that to you, because you are covering all ages with the hostility aggravator.

Mr Johnston: Would you mind repeating that point to make sure that we grasp it?

The Chairperson (Mr Frew): It seems that all the jurisdictions have hate crime legislation in place, but, in that hate crime legislation, do they have aggravation by reason of vulnerability or is it all based on hostility that is hate crime? Will we be going further to be more advanced than that if we add in the nuance of aggravation by reason of vulnerability?

Mr Johnston: I must say that I have not scrutinised all of the jurisdictions to that extent, so I would not be able to provide a full answer to address that. Our office is supportive of the vulnerability aggravator, which includes old age, at clause 36. It is clear where we are with that. I go back to the point about hostility and how language is used with how it could be meant in endearing terms and otherwise. Flipping that on its head, where an individual clearly makes an ageist remark that is hostile and they follow that through with an offence, are you willing to let that go without it being perceived as an aggravator because there is difficulty in trying to work out what hostility must mean? That hostility term is true of all of the other protected characteristics.

The Chairperson (Mr Frew): If you got your wish and age were included in clause 33, would you put a start age, for example over 60, on that? An 18-year-old could attack a 38-year-old and call them "old". A 28-year-old could attack a 48-year-old and call them "old".

Mr Johnston: I absolutely take on board the point that who they have directed it to does not necessarily sit with how society views that certain age groups sit. Again, my comments on this defer to the expert who was appointed on this, Judge Marrinan. He has looked into that in much more depth than I have, and, again, we would look to support his views where he says that age as a protected characteristic covers everything, albeit that statistics will probably show that hostilities are demonstrated at the top end of the age group. That is our official approach to that.

The Chairperson (Mr Frew): It would be quite interesting to see in each of the jurisdictions, of all of the hate crimes recorded on age motivation, what the age range of victims was and what age the youngest victim was.

Ms Doran: Eighty-six per cent of the victims were over the age of 60, and the prevalence among other age groups was so low, at between 0% and 5%, that they were not able to be included. The vast majority of victims were over the age of 60. The age of the perpetrators varied quite a lot. Thirty per cent were under the age of 16, 41% were between 25 and 44, and 22% were between 45 and 59.

I will double-check this, but I am pretty sure that Scotland has age as a category of hostility. I know that Professor Kevin Brown from Queen's submitted evidence to the Committee on age as a protected characteristic, and I think that it is worth noting that it does not have to be one or the other: it could be both. Professor Kevin Brown gave the example of a care worker abusing a resident of a care home while using ageist language and said that that could fall under a vulnerability aggravator and a hostility aggravator, if age were to be included as a demonstration of hostility. The two do not necessarily have to be mutually exclusive. With an individual who commits an offence against an older person where that is wholly or partly motivated by hostility on the basis of their age, we argue that that actual or perceived weakness or vulnerability is also a form of hostility towards older people who are being viewed in that way. To protect a larger proportion of older people, having both of those included protects the most vulnerable older people and the most independent and robust older people. It is our preference that both be included.

The Chairperson (Mr Frew): That is very useful.

I will bring in Emma Sheerin, the Deputy Chairperson.

Ms Sheerin: Thanks to you all for your presentation and your robust answering of questions.

I noticed from your presentation that you say that there is an element of under-reporting to the figures showing that older people suffer crime at a lower rate. You outlined the rationale on that, and all of that makes sense. Have you drilled down into the type of crime that is suffered by older people? Is there a specific issue that affects them?

Ms Casey: We have had meetings with the PSNI. We see a reduction in burglaries and similar crimes but an increase in domestic, financial and physical abuse. We need to get that data collected. It just falls into a big trough, but we need to be able to differentiate between the types of crime. Only 17·5% of reported crimes against older people have successful outcomes. That is very low. However, as I have known for years because of my experience in Age NI, it is about the fear of crime. The Minister said in a letter that safety was not mentioned in the Lived Experience report, but the information that we have received in our consultation is about people's feeling safe in their home, including being safe from scams, which is a different type of thing. We have to bear in mind that, when a crime is committed against one older person, it affects the neighbourhood; everybody locks their doors.

Ms Sheerin: We have had conversations previously about vulnerability. One of my frustrations is that there was chat about including females in that bracket of vulnerabilities. Perhaps older people could be included on the same basis. It is not about the victim's being a vulnerable person and the attacker's knowing that; it is that, in both of those instances, the perpetrator might have perceived that the person was vulnerable because of their gender, age or whatever, even if they were not. We hear stories all the time about financial crime in particular, which you mentioned, and about abuse in care homes and nursing home settings, or incidents involving carers coming into family homes, in which the attacker perceives the person to be vulnerable. Although someone's mother may be a lot older than mobile phones, she might not fall for a scam because she is savvy about such things. That is my concern about vulnerability.

I think that the definition of "hostility" in the Scottish model is much broader. Is that because of an actual hatred for an older person, or is it the belief that that older person is lesser, is not worth as much and, therefore, is easy to attack?

Ms Casey: The Scottish stats show that 86% of crimes against older people demonstrated a hate crime. I talked earlier about increasing ageism. There is more of an intergenerational challenge. It is more about hatred than vulnerability, or it can be about the difference between hatred and vulnerability. It is really important to differentiate between the two. Not every older person is vulnerable, but that does not mean that they are not susceptible to some sort of crime or incident. I have examples from my own family of people who are not necessarily vulnerable but have been targeted because —.

Ms Sheerin: Because of their perceived vulnerability from the perspective of the perpetrator, or would-be perpetrator. That is the difficulty.

Mr Johnston: You talked about hostilities. It is not necessarily about language. We hear of criminals attacking older people via telephone scams or whatever in the hope that they are vulnerable. There are groups that will target older people in that respect. Laws, especially criminal laws, are an expression of society's values. Do we want to take a stand and say, "Actually, we don't accept people's targeting older people in our society in the hope of taking advantage of them from criminal activities", or assault or whatever? We want to get that right. From our perspective, that is what it comes down to, which is why we believe that age should be added as a protected characteristic.

Ms Casey: It goes back to that. It should not be a question of how often age-based hostility occurs but whether the law is capable of recognising it and providing support when it occurs. If an older person is targeted because of their age, that experience is not less significant because only a few cases are reported or known about at the moment.

Mr Kingston: OK. The important thing is that age is included in the Bill as an aggravator. We will have a whole debate about the section that it should be included in. To be honest, I do not agree with what you propose. The outworking of the wording of the sections on hostility and vulnerability is the same. It reflects that there should be an increased sentence to recognise that a person's vulnerability or membership of a group in society was a factor in why the crime happened and that there was an impact beyond that victim on a wider section of society.

The term "hate crime" is used, but, as we know, there is no such thing in law, although police use the term. It is an offence where there is an aggravator. When I hear the term "hate crime", I think of what is mentioned in section 33 concerning race, religion and sexual orientation. That is what most people would think of as hate crimes. You highlighted that disability is in both sections, and I have wondered about that. Is it more of a vulnerability than something toward which there is hostility?

I do not generally think of an attack on an older person as a hate crime. I see it as somebody who has perceived that they could dominate someone and do something that they would not be able to get away with, were the person physically stronger or more capable. They have exploited what they see as a vulnerability in the older person. Society is rightly outraged at such crimes and exploitation when a person takes advantage of someone in that way. As we have discussed, the section on vulnerability highlights that the court will have to prove that the person's ability to protect themselves was:

That ability needs to be "significantly impaired", so —.

Ms Casey: Sorry to interrupt you, Brian, but many older people will probably not meet that threshold of vulnerability. If you were to experience a hate crime or someone were to be abusive towards you by saying different things to you, would you meet it? You are not vulnerable.

Mr Kingston: Maybe it should not always apply to someone just because they are above a certain age. The only clear-cut vulnerability in the Bill is about those who are under 18. We can all discuss the age at which we become old and the answer to the question, "Are you an old person?".

Ms Casey: If I had a penny for every time that I was asked that —.

Mr Kingston: We will not all agree. The bit about physical or mental disability might be more relevant, because we are associating old age with declining mental and physical ability. We could say that it is covered by that.

There is also a discussion about whether people feel that being called vulnerable or being classified as having vulnerability denigrates them somehow. We had that debate about whether misogyny should be seen as falling under "vulnerability". We have not yet come to a conclusion on that. We have heard people ask, "Is that denigrating women?", even though, quite often, a woman is attacked by a man because he perceives that he could physically dominate her.

I have another point. Not all protected characteristics in the Equality Act 2010 or in Northern Ireland law are listed in the Bill. Age is a protected characteristic, but not all protected characteristics are specifically listed.

When it comes to when that aggravator would apply, I see it as being relevant as a vulnerability. Society should be outraged that someone was taken advantage of because another person thought that they could dominate or take advantage of them. I cannot perceive how an attack on an older person is a "hate crime". When you read clause 34 and the second part of clause 36, you see that the outworking is the same. My thinking is that a crime against an older person, whether it is a burglary, physical assault or financial crime, is carried out because the perpetrator thought, shamefully, that they could take advantage of a vulnerability.

Ms Casey: Even experts, such as Judge Marrinan, who has been commissioned and given that advice, have scoped that, and it has been demonstrated elsewhere. We are trying to be progressive here and future-proof our legislation when we know that there is a continually ageing demographic. I go back to the point that not all — it will be really difficult for all older people to meet the threshold of vulnerability in the way in which you are defining it. It looks at impairment, but that is not what we are considering.

Mr Kingston: Maybe it would not apply in every case just because the victim is an older person. You would have to prove that there was a vulnerability.

Mr Johnston: With respect, every individual has a race, religion and age. An attack on an individual does not necessarily mean that it is a hate crime in respect of any of those characteristics.

Mr Kingston: Or that the aggravator should apply.

Mr Johnston: Yes. A crime could simply be assault without that. The Bill allows for that in that the crime itself must be proven to have been aggravated by hostility towards the protected characteristic. I get your point. I take on board that, if there is an aggravator by way of vulnerability, from a sentencing perspective, it will ramp that up in much the same way as it would if they found that there was an aggravator against a protected characteristic. However, it all comes down to how narrowly or widely that definition of "vulnerability" would be interpreted. If it is very narrow, many old people would not get that. If it is a very wide interpretation of it, it feeds into the stereotype. Are you then saying that all older people should be deemed to be vulnerable? I am not saying that you said that: I am using the example that you gave there.

When we look at other things as well, we see examples of justice agencies in Northern Ireland having already criticised and shown how the needs of older victims have not been addressed properly within the framework that exists. Getting back to what the review was all about: it was a review of hate crime. As Siobhan said, where a lot of time and effort was put into a review of those matters, and where, undoubtedly, a lot of thought and consideration was put into who would conduct the review, we feel that the findings, which support age being part of that, should indeed form part of the Bill.

Mr Kingston: Again, as the Chair said, to prove the hostility aggravator, it would have to be proven in court that the perpetrator demonstrated, at the time of the offence, hostility based on the victim's membership of that group. How do you define that? How do you define age? We could talk about that all day. I just think that it actually sits better as a vulnerability. I think that it will work better that way.

Ms Ferguson: Thank you, Siobhan, Anna and Raymond, for your presentation. My point is in a similar vein to that discussion. Just because we do not have the data, or it is not recorded, does not mean that it is not happening. I am concerned about the demographics. We have not planned for the future of an ageing population, either for someone who is getting older or for someone who is currently caring for an elderly person. I get that it is not about one or the other; it is about both. For instance, you can have an older parent. We worry. I think that we all do. As society progresses, I think that there has been an increase in ageism. We should future-proof any legislation. I definitely get that. I get, as well, that how we look after and support our older population is as much of a reflection of society and our values as how we look after our young children. We should do likewise for older people. It may be about not one or the other but both. I get the difference between being vulnerable and just being old. With the lack of data and incident reporting — the experts in the field who have done all the work are making recommendations on that — the concern is about how this will operate in practice in the courts. Legal professionals who have come before us have said that it will be difficult to prove in court.

I would love you to give a few examples and to talk about the evidence base in Scotland. What data was gathered in Scotland that could be utilised to educate us and others about the scale of the problem of hostility due to age? I believe that it is on the increase and will increase further. I have always had concerns about hostility solely due to a person's age and, likewise, their vulnerability.

Mr Johnston: You rightly alluded to people having sat here who are much better placed than our office to give a view on burden of proof, but it comes back to the fact that the concerns across the room seem to be about whether this will be a floodgate moment. Are we trying to call everything a hate crime, given that everyone has an age? Again, if we are looking for a comparator for Northern Ireland, we would be hard-pressed to find somewhere closer than Scotland. Since its introduction there, we have not been talking about large numbers — they have been quite small — but, no doubt, when the cases have been through the courts, the courts have dealt appropriately with the individuals involved. Perhaps, in taking this forward, it will be about engagement with Scotland on how it went through the burden of proof process for hostility.

Not having age as a characteristic means that offences that have clearly involved hostility related to age will not be appropriately dealt with if the individual is not deemed to be vulnerable. It does not sit well with us that those who go out looking to take advantage of people because of their being in an older age group will not be properly dealt with. It comes back to the point that, in drilling down into hostility, perhaps there should be more engagement with Scotland about how it has been interpreted there, but we feel that there is a place for age as a protected characteristic.

Ms Casey: As I said, Ciara, the 48 hate crimes recorded by the Scottish police as having an aggravation of age made up 0·6% of crime overall, so we are talking about low numbers, but 13% of those were common assaults and 83% involved threatening or abusive behaviour.

The Chairperson (Mr Frew): That is telling.

We all have family members who have suffered as a result of their home being burgled because of their old age, for example, and everything that goes with that. That is really impactful. An older person whose home is burgled loses all trust in anybody who comes to the door, and there is a real impact on their health. We need to take this seriously. I do not think that there is a fear that a floodgate will be opened. What we are trying to do is make sure that the law that this legislature passes is effective enough to capture and protect all individuals who are of an age. It is about making sure that the legislation is sufficient. Please do not take that to mean that we are not here to protect old folk, because we really are. It is about making sure that the law that we pass is effective and efficient in being able to be used in a court of law to protect the people whom we are all fighting for.

I appreciate that you are here to speak on behalf of older folk, because you are the Older People’s Commissioner, but, the inclusion of older people notwithstanding, do you want to mention anything that has been missed in Part 6? People have talked about other protected groups that are not included. Do you want to have a say on that, or do you want to keep to your remit for older people?

Ms Casey: Yes, we will stick with age.

The Chairperson (Mr Frew): OK. You do not want to cause any more rows. [Laughter.]

I understand.

Thank you very much for your time, Siobhan. You are welcome here, and it was good and informative for us to hear from you. Thank you for your time.

Ms Casey: It is a pleasure. Thank you.