Justice (Sexual Offences and Trafficking Victims) Bill: Second Stage

Executive Committee Business – in the Northern Ireland Assembly at 3:30 pm on 13th September 2021.

Alert me about debates like this

Debate resumed on motion:

That the Second Stage of the Justice (Sexual Offences and Trafficking Victims) Bill [NIA 29/17-22] be agreed. — [Mrs Long (The Minister of Justice).]

Photo of Peter Weir Peter Weir DUP

I rise to indicate that I and my party support the Bill. We support and welcome the principles of the Bill. Although we have yet to see the wording of the three amendments outlined by the Justice Minister, I indicate that, in principle, we will be supportive of those amendments as well.

Mention was made of the route the Bill has travelled. I welcome the fact that we have a Bill that is quite focused on sexual offences and trafficking. It means that not only can we in the Assembly find issues we can unite on across the House but we can ensure that those specific issues are given the focus that they require to ensure that we get things right. There was a little bit of discussion, particularly between the Minister and the Chair, about the quantity of legislation. I am sure they will both agree that the quality of the legislation is even more important. Therefore, it is important that we stress-test the Bill, as Ms Bradley said, to ensure that the wording is right.

I will pick up on the first theme. While the advance of technology has many advantages in a rapidly changing world, its increase creates its own problems. Sadly, we have seen that sexual offenders have used technology to advance their pernicious activity. It is very important that a range of the measures proposed in the Bill help to cover some of that development. Mention was made, particularly on clause 1, of the two additional offences that are being sought for voyeurism through upskirting and downblousing. We can all agree that we need to ensure we can combat offences that could not have occurred 10 or 20 years ago.

One of the areas that we will want to stress-test is highlighted in the Bill's two proposed headings on the motivations of either sexual gratification or humiliation. While those seem like very sensible approaches, the Committee will want to make sure that the wording on those is right and that the motivation matches the offence.

The dangers of the advance of technology are highlighted in the increased sexual grooming of children. The Bill reflects four new offences from the report on child sexual exploitation, where adults try to sexually exploit children through pretending to be a different age. It is important that those issues are tackled as well.

One thing that may be difficult to achieve but is significant and that the Committee will want to look at is that the provisions should combat such crimes at the most cutting-edge level. They will allow us to catch up with current developments, and we will want to see whether there are any measures that we can take to future-proof the legislation to make sure that those who seek to use new technology and new techniques are combated. That is particularly welcome in the area of revenge pornography, where we have yet to see the exact wording of the amendment. It is a growing threat, and, as we know, it is not simply that it is used for revenge but that its coercive nature is highly significant. Similarly, on criminal conduct, which is dealt with in chapter 1, while it is hard to comprehend how anyone could come to a different conclusion, if the use of terminology could be wrongly interpreted to potentially assume any blame towards children, and we can change the language to make that clearer, that should be embraced.

Chapter 2 deals largely with the Gillen recommendations. Again, while we want to make sure that we get it right, we should have adequate protection for victims so that it does not become a major threat or impediment to those seeking justice. Similarly, that protection is required for defendants pre-charge. That should be done from the point of view of victims, but there have been high-profile media cases, particularly where footage has been leaked from different jurisdictions where there has been an investigation into somebody but not a charge. Quite often nowadays, people tend to think that there is no smoke without fire. We must avoid the situation in which public opinion feels that somebody is guilty of these horrendous crimes prior to a charge.

Similarly, given that we know that this can be a very stressful time for the victim and the defendant, I welcome the confirmation, from the discussion that we had with departmental officials, that there is provision that, while there is exclusion from proceedings, a nominated friend or relative will be with that person. No one will be left in the courtroom on their own or isolated. Sadly, that is not a hypothetical example. Many of us who have been involved directly in the law know that court cases, unless you are directly involved, are not a great spectator sport. They can be quite dull at times. Sadly, for sexual offences, there can be a prurient interest, particularly in high-profile cases. It is not simply a question of additional pressure in those cases but that, sadly, in a number of high-profile cases, details that should have been confidential have been leaked. In principle, it is right that there should be the opportunity for the public to be excluded from those court proceedings, very much in line with the Gillen recommendations.

Part 3 deals with prevention orders. In principle, I welcome the provision of a form of belt and braces by ensuring a modification to widen slightly SOPOs and VOPOs. Again, we will test the wording of that when we come to examine it in detail.

Finally, I want to touch on Part 2, which deals with trafficking and exploitation. I was involved in the passage of Lord Morrow's private Member's Bill on human trafficking, back in 2015, as were many in the House. While there are many occasions when people will decry the House, that was one of the most significant pieces of legislation that was passed. It stood as merit to Lord Morrow and, indeed, the House that we stood up for the victims of human trafficking. We stood up in two ways. First, practical arrangements were put in place to provide protection for those who were suffering from human trafficking. Ultimately, as was highlighted in the motion proposed last year by our Chief Whip, Joanne Bunting, there is always more that can be done, but there was that strong practical element to it. The second significance of the legislation was the key principle that it established that human beings, whether on the basis of sexual exploitation or enforced labour, are not to be treated as a commodity. They must be respected as a human being and protected as such. Consequently, I welcome the provisions.

At this stage, I do not see anything in clauses 16 and 17 that concerns me, but, as a Committee, we will want to see whether any actions can be taken that will further enhance those provisions. Clause 16 provides additional support for the victims of trafficking and extends to ensure that victims of sexual exploitation or child labour are protected, and provides the coverall that they will be protected if they do not fall within the cover of those categories, albeit, it is difficult to envisage circumstances where that would be the case. I take on board what has been said and the assurance that has been given by the Minister and officials on clause 17 and the movement towards a three-year strategy, which will mean greater scope and opportunity for the issues to be looked at strategically and implemented. I support the proposition that was put forward by the Committee Chair that there should, perhaps, be an annual monitoring provision, but the strategy should be rolling and able to do that.

These are grave issues on which we need to ensure that we can intervene so that we can provide that level of support and protection for people. I look forward to scrutinising the detail with the Committee. As others have said, it is important that this does not become legislation that sits on a shelf; it must be a living, breathing document. I wholeheartedly support the principles of the Bill and commend it to the House.

Photo of Chris Lyttle Chris Lyttle Alliance 3:45 pm, 13th September 2021

I welcome the opportunity to speak in support of the introduction of the Justice (Sexual Offences and Trafficking Victims) Bill. The Bill is another example of the leadership and delivery of the Justice Minister, Naomi Long, in this mandate. I particularly welcome the provisions that will increase the scope of offences relating to child sexual exploitation and extend abusive trust laws to protect young people in non-statutory settings. That includes the addition of the live-streaming of images to the definition of exploitation of children for sexual purposes, and the creation of new offences to deal with an adult pretending to be a child, or, as the Minister said, "masquerading" as a child, and making a communication with a view to sexually grooming a child under 16. It is my understanding that those offences will cover communication with an individual or a group, with a view to grooming a child, and with a view to grooming any child under 16. Importantly, the offences will not be limited to online behaviour.

I welcome the robustness of the penalty for each of those new offences. I understand that there will be a sentence of imprisonment of up to six months or a fine not exceeding the statutory maximum of £5,000, or both, on summary conviction, and a sentence of imprisonment of up to two years for a conviction on indictment. It is my understanding that the Bill will remove and replace existing references to child prostitution and child pornography. I agree with the Justice Minister that that terminology is outdated. Those changes make it clear that children are not responsible or willing participants in their own abuse. Alliance believes that the amendments to those legislative references will help in raising awareness of the status of children as victims of exploitation rather than as willing participants or otherwise complicit in abuse perpetrated by others.

I also welcome the change to the existing legislation that covers the abuse of a position of trust of a child contained in articles 23 to 31 of the Sexual Offences (Northern Ireland) Order 2008. The amendment will provide greater protection to young people who are in the care of adults in certain non-statutory environments. It is my understanding that that provision has widespread support from agencies and organisations that work with and represent young people, including the NSPCC, Children in Northern Ireland (CiNI), the Children's Commissioner, Barnardo's and the Safeguarding Board for Northern Ireland (SBNI), as well as a number of health and social care trusts and sporting organisations. The provision recognises the large amount of time spent by children in the care and authority of adults, as well as the power differential at play, in many non-statutory settings. It is vital that children have full protection and are safeguarded in those settings to flourish, to develop their interests, talents and abilities and to enjoy sporting and other activities in full safety. It is essential that would-be offenders know that robust law will be brought to bear on those who commit child sexual offences of that nature in those settings. I welcome the seriousness with which many sporting codes are taking the safeguarding of our children and the incorporation of mandatory training into coaching qualifications.

In 2019-2020, an average of six children were sexually abused every day in Northern Ireland, and PSNI figures suggest that there were 2,000 recorded offences against children under 18 years of age, which is up 37% in the five years since 2014-15. That abuse of trust and abuse of children must be eradicated from our society, and I am grateful for the introduction of this legislation and the action being taken by the Minister of Justice to help us to achieve that aim.

Photo of John Blair John Blair Alliance

Before I refer to the Bill, I commend the Minister of Justice for already delivering an ambitious legislative programme to reform our justice system, including crucial legislation such as the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021. Although some elements of the Bill that is before the Assembly today have been dropped to aid its progression, it is, nonetheless, an important step forward in improving the justice system and ensuring that it protects vulnerable victims. I hope that the remaining intended elements of the Bill that are not before us today can be delivered in the miscellaneous provisions Bill.

One of the key provisions of the Justice (Sexual Offences and Trafficking Victims) Bill, as it is proceeding, extends statutory assistance and support to victims of slavery, servitude and forced or compulsory labour. Modern slavery and trafficking are global and local problems. As abhorrent as slavery is, it happens in Northern Ireland. Slavery in any form has no place in a modern society. It exploits the most vulnerable people, and it is also, of course, a violation of basic human rights. I further applaud the Department of Justice for the considerable research and work that has already taken place on modern slavery and on tackling human trafficking, for the important work of contracted providers for the support services that they offer and for the progress that the Department has made towards eliminating slavery from the modern day locally. It is my sincere hope that inter-agency actions that are already under way on that will continue at pace.

This afternoon, along with other political representatives, I attended a climate crisis demonstration in the grounds of Parliament Buildings. It is startlingly apparent that the Bill before us, along with other crucial, required legislation, of which legislation aimed at tackling the climate emergency is one example, could be lost without an Assembly functioning as it should and without the politicians here working together in the interests of good governance and, more importantly, in the interests of victims of crime. Like my Alliance colleagues who have spoken, I support the Bill and its progress.

Photo of Rachel Woods Rachel Woods Green

I support the Bill at Second Stage. The Chair of the Justice Committee has outlined a number of points and issues that were raised during the evidence session last Thursday, so I will not go into most of those. The Bill, as we know, creates several new offences that will better protect citizens. Some of those stem from Gillen review recommendations and others relate to the protections offered to victims of trafficking, which can only be welcomed.

The Bill, in its current form, will offer some form of protection but, crucially, not to all victims of upskirting and downblousing. I will look at the purposes in clause 1, which deals with the two new offences of upskirting and downblousing. I raised this with officials last week when the Committee was briefed on the provisions and principles of the Bill. Some gaps here have already been looked at in England. Those are around the purposes in clause 1, as I said. Others looking at the English law have pointed to the motives that are missing. I worry that we are going down the same route of having similar limitations to legal protection from those offences and that we are not learning from others' experiences to date.

Not including additional motives or purposes may run counter to the aim of the Bill, which is to clarify the law and aid victims and police. In some cases, the victim's identity is not relevant to the perpetrators; for example, at a festival. We have discussed and heard about examples publicly, such as that of Gina Martin, who explained on Radio 4's 'Woman's Hour' what happened to her. If you have not listened to that, I suggest that you do. It is not clear whether the Bill adequately covers that situation because of the limited purposes prescribed in the construction of the offence in clause 1.

The provisions as written do not cover all kinds of upskirting and downblousing. Again, the actions and behaviour of the perpetrator need to be taken into consideration. Perhaps the Minister can address this in her closing remarks: why is the motivation confined only to sexual gratification? Why does it not consider other motivations like financial gain, "banter", "a laugh" or "group bonding"? Have those been considered? Without those other motivations being considered, does that leave a legal loophole or serious difficulties down the line for prosecuting these cases?

Sexual offences comprise many different elements. They are not just about sexual gratification or humiliation. They can be much more than simply "alarming" or "distressing" for the victim. The law must reflect the fundamental issues of power and control that are involved in these sorts of offences. In addition, the Bill, as it stands, does not cover the distribution of images or videos, which serves to amplify the harms of the conduct and often leads to further harm, abuse or harassment of the victim. I would certainly welcome debating and commenting on that, and I look forward to doing so as member of the Committee.

I am uncertain whether the way in which the Bill is drafted covers the times when people take non-consensual photographs of women, say, breastfeeding. For example, what if a woman is feeding in a public place? Let us take a real-life example. A woman is breastfeeding on a train when she notices someone laughing and taking pictures. She had noted the person staring at her before that. She had thought that he was using his phone but realises quickly that he is taking photos and laughing with his friends. Note that, in that example, it is done not for the purpose of sexual gratification but for one of the other purposes that I mentioned, namely "group bonding", as the person could reasonably argue in court that they never intended to humiliate the victim but were simply playing up to their peers. The question is this: if the Bill were passed as it is, could that woman go to the PSNI and have her case referred to the PPS under clause 1? Is breastfeeding considered, under article 71B, as:

"circumstances where the breasts or underwear would not otherwise be visible"?

If not, why not? Is breastfeeding a different category? We need to consider that.

Another part of the Bill that I have some questions about is the meaning of clause 7. That clause inserts a schedule to the 1992 Act to provide protections for certain online service providers regarding responsibility for illegal publications where the online service provider is a conduit for the relevant information, is caching the information or is hosting the information. I would appreciate further clarity on the need for those provisions and how they will work in practice.

Are we saying that websites hosting illegal images do not have responsibilities under this law? The provisions give them a defence if they are unaware of their platform being used for illegal publication. I know that that area is usually a reserved matter and that it may be included in the Bill on legal advice, so I wonder if it is in other devolved jurisdictions and how it is being led in England, Scotland and Wales, for example. How would the other side work, for example, if a provider knew that its platform was being used for illegal purposes yet claimed that defence?

The Minister and the Chair of the Committee also mentioned further amendments that are to be made to the Bill at Consideration Stage, which include the abolition of the rough sex defence, the extension of the revenge porn provisions to include a threat of publication and fixing the removed offences in schedule 2 to the Magistrates' Courts Order. I, too, welcome the legislation changing the abuse of trust laws here, extending them to include the non-statutory settings of sports and religious sectors. We must thank the NSPCC for its valued input and work on abuse of trust. It is paramount that, as a society, we protect all children and ensure that they feel safe.

Without seeing the exact text of the proposed amendment, I am not able to comment further on it, but, at this stage, I will raise a point with the Minister about data collection that the NSPCC, I know, has raised previously. There is a problem with data collection. I have raised it during the passage of previous Bills. We have had debates about the importance of data collection and what it means for resourcing. Without robust, reliable figures on the volume of victims and witnesses, our ability to design a system to respond effectively to the need is limited. There is open data on the number of offences reported to police of all sexual abuse crime against under-18s. In 2019-2020, 2,082 sexual offences against children were recorded, which was around 60% of all sexual crime, but the volume of young people who journey through the system is unclear. Can we have and publish desegregated data for under-18s? Do we need to legislate on that, or can it be done through a different way of collecting and publishing data by process?

During the progress of the Domestic Abuse and Civil Proceedings Bill, a number of Committee members raised the rough sex defence and discussed why it was important to abolish it. Unfortunately, there have been many instances where people have been killed that have attracted much discussion and attention. Recently, through the Domestic Abuse Act 2021, England and Wales legislated for a ban on the rough sex defence, but the campaign group We Can't Consent To This has collated and shown 60 examples of women who were killed through so-called "sex games gone wrong" in the UK since 1972. The claim, as we know, is that the victim had consented to having serious harm inflicted on them for sexual gratification, so the perpetrator must lack the intent to kill or cause grievous bodily harm. The issue is highly contested and highly gendered. According to We Can't Consent To This, 115 people, all but one of them women, have had to attend court, where it was claimed that they consented to violent injury. The law must be clear that you cannot consent to serious injury in the form of so-called rough sex or the '50 Shades of Grey' defence, as it is now known. The defence can be deployed by perpetrators of intimate partner abuse and violence. It is appalling that a victim of serious assault has to attend court to answer questions around their consenting to violence during sex, having to relive their experiences of harrowing sexual violence, and I cannot imagine how painful it must be for family members going through a trial where the rough sex defence is used by the defendant.

There are issues in taking the same approach to that in England and Wales, however, and they have been identified previously. I know that they were brought to the Department's attention through its recent consultation. We need to look at cases where people who kill their partner during sex are still being charged with manslaughter because the bar to charge and convict for murder is too high to meet. That was seen in a recent case in Darlington. The Women's Resource and Development Agency has suggested that we need a new offence that would capture such forms of extreme violence and allow for appropriate sentencing in accordance with the culpability of the defendant. Making it specific in legislation would not prevent defendants claiming that the death occurred by accident, but it would be progress and a step in the right direction.

I recognise that this is a complex and complicated area of law. It needs to be recognised that court cases involving sexual assault and harm involve battles over intimate relationships and the trauma and issues that they bring. We know from Gillen and from previous examples how women especially can have their private lives literally put on trial and how gendered myths are involved in that process. There is therefore much to be done and to be considered as part of the new rough sex defence.

Widespread education is key to a lot of things that we are discussing today and that we have discussed previously. Proper, age-appropriate and mandatory relationship and sexual education must be in place in our schools, colleges and universities. We must all have access to and avail ourselves of education on what a healthy relationship looks like, what consent is and what it is not and where to get support and information. We must be careful not to stigmatise. This is all about keeping people safe, so I hope that the Committee will get sight of the amendments before Consideration Stage, if they are available, as it will be crucial that they get the scrutiny that they require.

The Minister and a number of Members mentioned provisions that are not in the Bill. Like others, I wanted to comment on what was excluded, but I note the previous Chair's comments about my not doing that, so I will leave that to another time.

The Bill will improve the operation and effectiveness of the justice system as well as enhancing public safety and improving services for victims of sexual offences and victims of trafficking and exploitation only if it is well resourced and financed, if people are aware of it and if people are trained in it and know how to use it. It will go some way to closing the gaps, resolving inconsistencies and modernising our law. Of course, there is much to do. As I said at the start, I welcome the Bill, but I will look at clauses that can be improved. It has taken a long time to get here, and there should be more provisions in the Bill dealing with a wider range of issues, but I thank the Minister for bringing it forward.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 4:00 pm, 13th September 2021

I do not anticipate needing to be long, because, one issue apart, I do not really have any fundamental objection to the content of the Bill. I want, though, to make a couple of comments on clause 1, after which the burden of my remarks will relate to clause 15.

In clause 1, we have the upskirting and downblousing offences. The point that puzzles me somewhat is this: the clause makes it an offence to operate equipment and to record an image. It does not seem to make it an offence to distribute such an image, for gain or otherwise. I cannot think of where else that might be covered. I am pretty sure that it is not in the 2008 Order, so why would we not carry the clause through to its apparent logical conclusion, making the offence not just the operation of the equipment and the recording of the image — I am a wee bit intrigued as to what the difference between the two is, but I will leave that to one side — but the distribution for gain or otherwise of such an image? In her winding-up speech, perhaps the Minister can explain why the offence does not have that dimension within its ambit.

Clause 15 creates a blanket ban on public access where a trial is taking place relating to a serious sexual offence. Part of the confidence-building aspect of our justice system down through decades and centuries is the fact that we have open justice, that we do not hide behind closed doors and that we generally do not convict people away from the public gaze. That is for the profound and good reasons that we do not want to generate gossip, misrepresentation and misconception of how our justice system operates. Therefore, fundamentally, we operate an open book and a justice system that is open to the public. Of course, there have to be certain exceptions as one progresses through that, but to come to the point in the Bill where we introduce a blanket ban on the public being present at any trial that deals with any serious sexual offence takes the matter far further than it needs to go.

I would have thought that the way to approach it and to obtain a legitimate objective would be to, rather than imposing a blanket ban, insert in what would be new article 27A under clause 15 words like, "Where the court is satisfied that it is in the public interest that a person is to be tried on indictment for a serious sexual offence, the court must give an exclusion direction". That would leave it within the control of the court; instead, the Bill would put it beyond the control of the court by introducing a blanket ban. That will not produce fairness and openness; it will suppress fairness and openness in some cases — maybe in many cases — unnecessarily. I say to the Committee, "When you come to look at clause 15, please consider conditioning the ban with the threshold of it having to be in the public interest to exclude". Otherwise, it is not just unnecessarily draconian but potentially destructive to essential confidence in our open justice system.

I make that comment not least in this context: much of this flows from the Gillen review. It seems to me that in some cases — indeed, in many cases — Members, members of the Committee and people in the Department were star-struck by the eminence of Lord Justice Gillen and thought that, if he said it, it must be right. Lord Justice Gillen has led us to the incredible situation where the cross-examination of some complainants has been so tethered and fettered that it has become farcical. I do not know whether all Members know that, if you are defending someone in respect of a serious criminal offence that involves a complainant who meets the category of "vulnerable" — that can mean someone who is under 18, and many sex cases involve individuals who are under 18, some of whom are considerably sexually experienced — you can ask in cross-examination only the questions that the judge has approved in advance. Cross-examination is a living, evolving part of a trial; you cannot script it. The direction in which it goes is often dictated by the last answer given, and often it takes you into territory where, you suddenly discover, the truth lies.

Under Gillen, however, we now have what I describe as an absurd and dangerous situation where, if you are defending someone against the accusation of someone under 18 years of age, your hands are tied behind your back during cross-examination because the judge has to approve the questions that you will ask and can disapprove the questions that you want to ask. It totally takes the live action and purpose out of cross-examination and means that the evidence is not sifted and tested as it should be. Cross-examination is the essential bulwark that stands between the man or woman accused and their conviction. An effective cross-examination that tests the evidence is the best bulwark for a person in that position.

We are supposed to regard everyone as innocent until proven guilty, but when you fetter cross-examination, you are effectively, perversely reversing that. The presumption in these cases now is almost that you are guilty until you prove yourself innocent, and by hampering, thwarting and destroying effective cross-examination, we have produced that situation.

If we are now going to add to that unseemly situation by allowing all proceedings to go on behind closed doors so that no one can see the farce that cross-examination now is in such a trial, I say this to the House: we are headed very much in the wrong direction. We have already done too much, through mere directions, to how such trials are conducted. Yes, of course, in cross-examination no one should seek to humiliate or vilify someone who says they are a victim, but, in pursuit of the fundamental that their client is innocent until proven guilty, they must not have their hands tied behind their back, as Gillen has done in those cases. Now we are going to compound that by hiding it behind closed doors.

I say this to the Committee and the House: think very carefully about slamming the door on open justice. There is no need for it. You can build in the protection of allowing a judge to do that in cases where it is in the public interest to do so, but abandon this presumption and this blanket ban on open justice, because, by imposing a blanket ban on open justice, you do great despite to the whole process of justice. I say this to the House: please do not just rubber-stamp clause 9. Take a long, hard look and do the right thing by everyone involved in the criminal justice system.

Photo of Joanne Bunting Joanne Bunting DUP 4:15 pm, 13th September 2021

Thank you, Mr Deputy Speaker, for the opportunity to speak on the Bill. I want to speak to the human trafficking provisions, and, in doing so, I declare an interest as chair of the all-party group (APG) on modern slavery.

It is an uncomfortable truth that modern slavery is happening in Northern Ireland today, and, sadly, it is not an issue that can be relegated to the history books. For some, it is their reality, and I find that troubling to such an extent that I just cannot sit back and do nothing. I know that there are others in the House, the Minister included, who feel similarly. Imagine if it were your son or daughter who was taken from you and found themselves in those circumstances. Used and abused. Treated as a thing, not a person. Perhaps drugged and forced to do someone else's bidding. A slave for labour or sex. An existence, not a life. It is horrifying. We have an obligation and a duty to ensure that survivors of modern slavery receive the support that they need to rebuild their lives. As an Assembly, we need to ensure that we do everything possible to prevent those heinous crimes from happening.

As Mr Storey pointed out, getting clarity about the true scale of modern slavery is incredibly difficult. Sadly, the fact that 128 potential victims agreed to be referred into the national referral mechanism in 2020 accounts neither for those victims who have not been identified nor those who have been identified but chose not to go into the NRM.

When we think about slavery, it may conjure up images from the 1700s, with people being chained up and transported in slave ships. Sadly, in some ways, we have not moved very far from that. I remind the House of the horrific incident in May 2019, when 39 Vietnamese migrants were found dead in a lorry trailer in Essex, the driver of which was from Northern Ireland. That is what human trafficking and slavery look like today: people crammed into containers without air, food or basic sanitisation. It was reported that those people died an "excruciatingly painful death" having suffocated in the container en route. Tragically, they got into that container under the illusion that they were going to a better life. The youngest person was 15 — a mere child.

As the chair of the APG on modern slavery, I warmly welcome clause 16, which extends the statutory support and assistance provided to potential victims of human trafficking under section 18 of the Human Trafficking and Exploitation Act to potential victims of servitude or forced labour where there is no element of trafficking. That rightly places the support that has been provided to those victims since 2016 as a matter of policy onto a statutory basis.

On clause 17, I also agree with Mr Storey's comments and support his suggestion of yearly progress reports. That would ensure that we are aware of the progress that is being made during, as well as between, the three-year periods, and I was glad to see the Minister nodding when Mr Weir also referenced that.

For me, however, what is most significant about the modern slavery provisions of the Bill is how clause 16 highlights something of an elephant in the room. The 2015 Act, as proposed to be amended by the Bill, would still address only statutory support for victims during the period when they are in the national referral mechanism: that is to say, during the period when we think that they are likely to be victims of modern slavery but before victims receive a conclusive grounds decision that they are victims. It will come as no surprise to the Minister that I raise that.

The moment of the conclusive grounds decision is key for two reasons. First, it is the point at which we say that a person is definitely a victim of modern slavery and so our obligation to them radically increases. We then say that those people have been used as slaves, probably in this country. Secondly, the presenting task is now not to establish whether they are victims of modern slavery but to help them to recover. Somewhat extraordinarily, however, and as I pointed out to the House in the debate that I secured 11 months ago to mark Anti-Slavery Day, our legislation does not make any statutory provision for the support and recovery of confirmed victims of modern slavery.

The Modern Slavery (Victim Support) Bill in Westminster, which is supported by a coalition of 27 leading charities, including Anti-Slavery International, the Human Trafficking Foundation, Christian Action, Research and Education (CARE) and Lord Morrow, of course, proposes legislation to provide all confirmed victims of modern slavery with statutory support for 12 months, should they wish to avail themselves of it, to help them recover.

That has two practical benefits for the victim and the taxpayer. First, it means that victims are given time to recover so that they rebuild their resilience, without which they are extremely vulnerable to re-trafficking. Secondly, in a context where rather than being absorbed with worry about where their next meal will come from or whether they will have a roof over their head next week, confirmed victims in receipt of support have space to think about helping the police and the Public Prosecution Service (PPS) in court.

Without the evidence of confirmed victims in court, it is very difficult to secure convictions of traffickers and our low rate of conviction of traffickers will continue. That is of huge importance, not just from the perspective of securing justice for victims but, in some ways, more importantly, from the perspective of reducing trafficking, which we will never manage to do as long as traffickers continue to judge that the small risk of being caught is greatly outweighed by the attraction of making huge profits. I believe that the lack of statutory support for confirmed victims is something that we should address through amendments to the Bill. Moreover, in rising to that challenge, there is a special opportunity for Northern Ireland to assume leadership on the issue, as it did in 2015, securing Royal Assent significantly earlier than the equivalent English, Welsh and Scottish legislation.

Members will be aware that the Westminster Government's Nationality and Borders Bill, while placing the current non-statutory support provisions for confirmed victims on a statutory basis, actually makes the service slightly less accessible than it is now. The fact that we are the only other legislature in the UK to be considering, at the same time as Westminster, legislation within which victim support is in scope means that the Assembly has a unique leadership opportunity to model a different and better way. I very much hope that we will come together on a cross-party basis to provide leadership in 2021, just as we did in 2014-15.

We have an opportunity to make Northern Ireland a place that values the lives of survivors of modern slavery. Through the APG, I have had the opportunity to meet with NGOs and hear about their work and that of the charities that are working hard to bring meaningful changes to the lives of victims of modern slavery in Northern Ireland. Now, we, as an Assembly, need to ensure that the legislation and policy processes are in place to assist them in that invaluable work. I trust that the Minister will take on board some of those thoughts, as will the Committee, and I look forward to seeing what comes at the next stage.

Photo of Naomi Long Naomi Long Alliance

As I mentioned at the beginning of the debate, progressing this legislation and protecting the most vulnerable is a priority for me. Therefore, I thank Members for their very constructive and positive engagement today; it is, clearly, also a priority for them. As the Bill moves through its stages in the Assembly, I hope that we can continue this positive spirit in order to ensure that this important legislation reaches the statute book as soon as possible. I look forward to the legislation delivering better outcomes for those people across Northern Ireland who have experienced the type of offending behaviour that it sets out to address. I know that many of you are supportive of the Bill as introduced and those additional protections that I intend to bring forward as amendments to it at Consideration Stage. Taken together, those measures will provide effective protections for vulnerable people and for the public at large.

I want to turn to some of the issues that were raised during the debate. I hope that I can do them justice because there are a considerable number of them. First, I welcome Mr Mervyn Storey to his role as Chair of the Justice Committee and I thank him for his support thus far in what was a comprehensive and very sensitive and thoughtful speech today. I also want to put on record my thanks to his predecessor, the now First Minister, Paul Givan, for his service to the Committee and to the Department of Justice during his tenure in that role.

I want to assure the Chair and the Committee members, perhaps more than anyone else in the Chamber, that my intention is to bring forward the amendments to which we have referred as early as possible to facilitate their full scrutiny by the Committee. That is hugely important, which has been reflected in the level of interest shown in the amendments today.

The extent of the proposed anonymity of victims and the accused was raised by Mervyn Storey and Sinéad Bradley. I want to consider each of those matters in turn, turning first to the anonymity of victims.

In the independent review of arrangements around the delivery of justice in serious sexual offence cases, Sir John Gillen recommended that the anonymity of the victim of a sexual offence, which is currently applicable during their lifetime, should be made permanent after their death. However, legal advice indicated that an indefinite reporting restriction may contravene article 10 of the European Convention on Human Rights (ECHR) — freedom of expression — and that permanency would not be considered proportionate. The provisions have therefore been drafted to prohibit the publication of anything that would identify a victim of a sexual offence for a period of 25 years after their death to minimise the potential for a breach of the ECHR. I consider that to be an appropriate and proportionate period to address the legitimate aim of protecting the reputation or rights of others for a reasonable period after death. That said, the provision provides the opportunity to disapply or modify that period. That will enable the family of the deceased victim to apply to the court for variation, disapplication or extension to the 25-year period. It will also allow persons interested in publishing matters that relate to the victim to apply to the court to have the reporting restrictions varied or disapplied.

The provisions deliver one of the main aims of the Gillen review, which is to protect the anonymity of victims of sexual offences and to guard against the possibility of jigsaw identification, which is of particular concern in a small jurisdiction with close-knit communities, such as Northern Ireland. Victims highlighted to Sir John their genuine concern that their identity would become known after their death. That has potential reputational consequences. The provisions address those concerns and will also be important to the victim's family, who will be provided with reassurance that their loved one's integrity will be protected going forward. The more the anonymity of victims of sexual offences is protected, the greater their confidence in the criminal justice system will be and, consequently, the more likely it is that they will feel confident in reporting those crimes to the police.

I turn to the anonymity of suspects. Of course, Mr Allister was right in saying that there should be no presumption of guilt on behalf of an accused person and that there has to be balance in how the courts deal with these issues. The Gillen review highlighted the dangers of the public shaming of innocent people pre-charge. There have been a number of high-profile cases in which that was the case. The review gave an example. There are high-profile cases such as Cliff Richard, who was named as being under investigation for offences but was subsequently not charged. That sort of pre-charge public scrutiny threatens to undermine the right to be thought of as innocent until proven guilty. Sir John Gillen concluded that to identify the suspect before there is sufficient evidence to even establish a charge:

"is effectively to engage in a fishing expedition."

By introducing anonymity for suspects pre-charge, the right to be thought of as innocent until proven guilty is not undermined, and those who are not subsequently charged will not have to suffer, be publicly shamed or risk having their reputations ruined by a flawed presumption that there is "no smoke without fire". The provisions may also generate greater confidence in the justice system for victims, who may be encouraged to report sexual offences knowing that media attention will be minimised and that there will be less likelihood of jigsaw identification of them as victims. Again, that is of particular importance in as small a jurisdiction as ours.

Anonymity for suspects who are investigated but not subsequently charged is being placed on a par with that of victims. Their anonymity will be equally protected during their lifetime and for 25 years after their death. That is on the basis that they are an innocent party in the eyes of the law.

The provisions are not absolute. For example, a suspect can waive their right to anonymity to substantiate an alibi. The police can also apply to the court to have anonymity disapplied, when, for example, the suspect is at large and poses a threat to the public. The penalty for a breach of the anonymity of a suspect, which, on summary conviction, is up to six months' imprisonment, a fine or both, is in line with the increased penalty that will be available for breach of the provisions relating to anonymity of a victim after death.

I concur with the Chair of the Committee in respect of trafficking for slavery, servitude, forced labour and, particularly heinously, sexual exploitation. I reassure the Member that, with the national referral mechanism having been legislated for only in 2012 and legislation requiring referral coming only in 2015, the increases may well show better cooperation between statutory authorities when identifying victims and using the national referral mechanism rather than a sudden increase in that particular kind of crime. However, he is, of course, right: any level of crime in that space is something that we, as members of the public and Members of the House, should all be alert to and do all in our power to try to address.

I reassure the Member that the longer time frame for the strategy does not represent any diminution in our focus on the issue in the Department. A three-year strategy will give us an opportunity to look at combined operational plans across all of the various agencies that are involved, which will give us a cycle in the planning strategy that will allow us to deal with some of the key issues in a more nuanced and, perhaps, constructive way. That is an effective and strategic approach. However, since the Member specifically asked, I also reassure him that we will continue to produce annual progress report updates. It is important that we keep a watching brief on this area of work.

Finally, the Chair raised concern about the support that is available to child victims of trafficking. The working arrangements for the welfare and safeguarding of child victims and potential child victims of modern slavery and human trafficking were produced by the Health and Social Care Board and PSNI, in consultation with my Department and the Department of Health. Those arrangements set out the pathway for supporting child victims, which are delivered through existing provision by the health and social care trusts. The arrangements note that:

"Any child or young person who is known or suspected to be a victim of Human Trafficking or Modern Slavery is by definition a child in need of protection and should be subject of an investigation under the provisions of Article 66 of the Children Order (a child protection investigation)."

The Health and Social Care Board has also commissioned Barnardo's to deliver the independent guardian service in line with section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. Those guardians represent and act in the best interests of child trafficking victims, ensuring that they get the help and support that they need.

I welcome Sinéad Ennis as she takes up her role as Deputy Chair of the Committee. I also put on record my thanks to her predecessor, Linda Dillon, who served in that role over the past number of years and has now, I believe, moved on to take up the mantle in the Policing Board. I welcome Sinéad's support for the Bill and her particular focus on upskirting and downblousing. Those issues were also raised by Sinéad Bradley and a number of other Members, so I will spend a little bit of time on them, if I may.

As Members will be aware, upskirting is an offence in the rest of the UK but downblousing is unique to this jurisdiction, so we hope to get ahead of the curve with respect to these issues. A number of Members, including Peter Weir and Rachel Woods, have raised concerns regarding motivations other than sexual gratification and/or humiliation, or the desire to cause fear. We have not included those other motivations, such as financial or coercive motivations, for those offences because we believe them to be already covered in other legislation. I will spend just a few moments explaining that.

Where such behaviour is, for example, an attempt to blackmail or coerce a victim to do something against their will in the context of a coercive relationship, it would be caught by our proposed provisions or our existing legislation with respect to domestic abuse where it happens in an existing relationship. Such behaviour in a coercive relationship could be captured by the amendment to the Bill that is planned for Consideration Stage about making it an offence to make threats to disclose private sexual photographs or films. I consider that, if a person took an upskirt photograph of a victim with whom they are not in a relationship and subsequently attempted to coerce them with threats of showing it to others, the attempt to humiliate, alarm or distress the victim would be proven, and such behaviour would fall within the scope of the offence. Where blackmail is the motivation, the offence of blackmail — an indictable-only offence with a maximum penalty of 14 years — can also be considered by the PPS.

Where a journalist, for example, makes money by taking images of celebrities where they are getting out of taxis, and subsequently sells those images to media outlets, or where someone makes money by publishing them on a website for the sexual gratification of others, I consider that that behaviour will also be caught by the offence. Where an upskirt image is published, the journalist may know that the image has value because of the humiliation, alarm or distress caused to the victim, or that it might be published knowing that it will be used for the sexual gratification of others. Again, in those cases, I consider that intent is there and the behaviour is within the scope of the offence.

Doug Beattie, Paula Bradshaw and others raised the importance of the Gillen review and of bringing forward these legislative provisions, which help us to implement those aspects of Gillen that require legislative underpinning. Open justice is important, but there is significant evidence that taboo and shame around rape and sexual assault prevent victims from going to trial. The Gillen review concluded that the unrestricted access of the public to trials of serious sexual offences deterred, humiliated and intimidated complainants. Such access undermined the right to anonymity of the victim, even when special measures were invoked, and brought the legal process into disrepute, fuelling already existing fears about reporting sexual crimes to the police.

The review recommended that the public at large should be excluded from all serious sexual offence hearings in the Crown Court and that only those necessary to the functioning of the trial should be allowed to remain. It also recommended that the public should be admitted for the verdict and, where there is a conviction, for sentencing. The provisions of the Bill will minimise, again, the risk of victims' identities becoming known through jigsaw identification. The exclusion of the public, accompanied by the availability of special measures, will make the trial ordeal less harrowing for victims. As Gillen noted, the risk of identification is one of the reasons why victims are deterred from reporting these offences. The fear of recognition is heightened by the relatively modest size of our jurisdiction.

Another, and perhaps even greater, deterrent to victims is knowing that they will have to discuss intimate and harrowing details of what happened to them in front of a public gallery. I take on board entirely the concerns that were expressed by Mr Allister, specifically with regard to the issue of open justice. It is important that we demur from that only where it is absolutely necessary and where there is an evidence base that justifies such a decision. In this case, it is not just the vulnerability of the witness or victim but also the protection of their anonymity which gives us that evidence base. I also reassure Mr Allister, if I may, that this is not, as he suggested, taking away responsibility from the courts. The courts retain responsibility for the extent of those who are excluded and can make provision, for example, for members of the press, and others where they see fit, to have access to the court legitimately. However, we have been advised that the best way to allow the courts to do that in a constructive way is to have this particular provision in place, which can then be adjusted by the court.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Minister talks about adjustment by the court. Proposed new article 27A(1) is very clear:

"the court must give an exclusion direction".

So the presumption and the operating basis is that there is a blanket ban on people being excluded. The Minister says that this can be adjusted. Why, then, does she not simply acknowledge the presumption of open justice and allow the court to decide whether it must make an exclusion order, in the light of the interests of justice in each case, on a case-by-case basis? Is that not the way to go?

Photo of Naomi Long Naomi Long Alliance

I have set out the rationale and evidence as to why the alternative provision has been put in place with respect to having a presumption in favour of the court not being open to the public in the case of serious sexual offences.

The court has discretion, however, to permit any other person to remain in the court where it considers that doing so is in the interests of justice. The review concluded that unrestricted access to public trials in serious sexual offences deterred, humiliated and intimidated complainants, that the right to anonymity of the victim is often destroyed even when special measures are invoked and that it brought the legal process into disrepute, fuelling already existing fears about reporting sexual crimes to the police.

It should, however, be noted, as I have stated, that if the proceedings change — for example, if the more serious sexual offences are dropped in favour of lesser charges — that exclusion direction can also be changed and, indeed, lifted. The court can vary an exclusion direction if circumstances change, and the public will be admitted to the court to hear the verdict where there is a conviction. They will also be admitted to hear the sentence proposed.

It is important that we protect those who are accused of serious sexual offences and those who are the victims of serious sexual offences. I believe and, indeed, Sir John Gillen believed that that presumption struck the right balance in doing so but left a degree of discretion with the courts so that, either where there were additional people who rightly should be in the court or when the judge felt that there was good reason that there should be additional people admitted to the court, they were free and able to do so.

It is, however, further evidence of the taboo and shame that surrounds victims of rape and sexual assault. If we do not deal with that shame and taboo and do not deal with the victim-blaming culture that leaves many people afraid to come forward, to complain to police and then to pursue their case to the court, we will not be able to remove rapists and sexual abusers from our society, and it is important that we have the ability to do that.

I concur entirely with Doug Beattie, Paula Bradshaw and others who highlighted this issue — the issue of sexual assault, the vulnerability of the victims and the importance of the legislation — as an example of why it is important that the Assembly continues to fulfil its functions for the remainder of this mandate and is able to deliver legislation of this kind not just in the justice sphere but across the board.

In addition, Paula Bradshaw, Jemma Dolan and Chris Lyttle raised the issue of the intended amendments from the Department that relate to the abuse of trust. The main intent of those offences is, as Members have stated, to prevent the manipulation of young persons to consent to sexual activity by those who hold a position of trust with them. While the provisions seek to protect all under-18s by virtue of the Northern Ireland statutory age of sexual consent, the provisions mainly relate to persons aged 16 or 17. Current offences were not intended to cover all situations in which an adult might have contact with or a supervisory role over under-18s. They focus on particular areas in which government has a duty to protect young people. It is important to ensure that, in extending the current provisions, a proportionate balance is achieved that protects our young people in vulnerable situations and, at the same time, respects their right to give legal consent to sexual activity from the age of 16. Framing the offences too widely could prohibit any person over 18 having sex with anyone aged 16 or 17, effectively raising the age of sexual consent.

It is important to note that the existing offences have been drafted against the backdrop of a wide range of general child sex offences already available. Those make it a crime for anyone to engage in sexual activity with someone under the age of 16, whether or not they consent. The proposed provision will extend the scope of the legislative definition of a person of trust so that offences apply to those who work with young people in the areas of sports and religious settings, where evidence presented to date is strongest.

I brought this forward earlier than was intended, because I believe that it is important that we act now in order to offer the maximum protection that we can. To extend the law beyond those settings at the moment, however, would require more extensive consultation and engagement to identify and explore fully any areas of potential concern in order to ensure that legal intervention was required. I also have concerns about extending legislation around human rights compatibility, particularly regarding engagement with article 8, which relates to the right to a family and private life.

To promote clarity in the application of the law and withstand legal challenge, it is crucial that we have a robust definition of the offence. However, I will keep the door open on the policy with the inclusion of an enabling power to allow further sectors to be brought within the scope of the provision by way of secondary legislation in due course where there is evidence of a further gap in protection. The work was informed, as others mentioned and as I mentioned in my opening remarks, through engagement with key stakeholders. In particular, I am grateful for the assistance of the NSPCC, which worked closely with my officials in that area.

I want to address a number of other issues that were raised. First, I want to reassure Rachel Woods that the word "record" covers both moving and still images with respect to upskirting and downblousing. I also want to ensure that the issue with respect to breastfeeding has been and will continue to be considered. I am happy to engage directly with the Member. Currently, taking photographs of someone who is breastfeeding is not an offence where they are breastfeeding in public, and there is no expectation of privacy. The Bill's provisions apply specifically to taking images of breasts or underwear that is covering breasts that would not otherwise be visible. Images of a woman who is breastfeeding would not, at this point, come within scope where the woman is breastfeeding openly. However, if the woman is taking steps to be discreet from public view when an image is taken to reveal more than she intended to reveal, it would potentially be covered by the legislation. It is not a simple issue. There are many circumstances in which someone who is breastfeeding will be more than happy to have photographs taken by family members and friends. Again, it will fall back on the issue of whether there is a cause of distress, alarm or disquiet in the motivation of the offence.

A number of Members raised, both in the debate and questions for oral answer, the issue of ISSPs. There is some concern in that regard. I want to have a quick look at the issue. It relates specifically to the requirements of the e-commerce directive 2000/31/EC, which set up an internal market framework for online services. Its aim is to remove obstacles to cross-border online services in the EU internal market and provide legal certainty for business and consumers. Provision in the Bill was included on the specific advice of the UK Government, with whom the Department consulted on that issue as a consequence of Brexit. The e-commerce directive ceased to apply to the UK with effect from 31 December 2020. That means that ISSPs established in the EEA, whose services are accessible in the UK, will now have to comply with any specific laws that are applicable in the UK. As ISSPs will have to adhere to the legislated provisions of the Bill, defences are required to ensure a proportionate level of protection where it can be proven that their role in the use of the information was merely in caching, hosting or as a conduit for it without their knowledge. That is, as I said, the advice that we received from Westminster. Obviously, we are happy to share further discussions with Members.

Finally, I turn to the departmental amendment on the rough sex defence. The Department has completed an extensive consultation exercise on that provision. We had 175 responses. Some 98% of respondents considered the current Northern Ireland legislation to be insufficient, 92% believed that the defence of consent should be outlawed, and 99% believed that a programme of education was required. There are no direct statistics for the number of occasions on which the rough sex defence has been used. However, from 2002 to the end of 2019, the PSNI charged 502 suspects with choking or strangulation. That may not be a direct indicator of non-consensual rough sex, but there are often links between the two behaviours. In addition to the provisions to abolish the rough sex defence, Members will know that I am committed to a wider review of the law on non-fatal strangulation. Consultation on that issue closes on Friday 17 September. That may provide a suitable vehicle for taking forward some of the concerns that others raised.

Finally, I will turn to the comments from Joanne Bunting. I know that the Member has a particular interest in slavery and human trafficking. I would be happy to work with her and her colleagues on the APG to ensure that the areas of concern that she outlined are ones that we can address. We work in a difficult space, because many of those issues on providing support are not within the devolved purview. She will understand the complications of that.

In his time as Minister, David Ford, working closely with Maurice Morrow and others, managed to extend the cover and support that we already give to victims of human trafficking. The Bill will put that on a statutory footing. However, I am, of course, open to looking at what more can be done. I say to the Member, though, that I hope that she will also knock on the doors of Executive colleagues, because, ultimately, the funding for this is not within my gift as Minister of Justice but would require Executive agreement. Many Members made clear their concerns about human trafficking and their desire to support those most vulnerable people who have gone through that utterly horrifying and terrifying experience.

I am encouraged by the support that Members have shown for the Bill. In drawing my remarks to a close, I thank everyone who contributed to what I hope was a useful and constructive discussion. I am confident that the Justice Committee will have an interesting and productive, if, perhaps, very busy time, in considering the issues and scrutinising the Bill. I wish Committee members well for the task ahead, and I commend them for their attentiveness to date. I commend the Bill to the House.

Question put and agreed to. Resolved:

That the Second Stage of the Justice (Sexual Offences and Trafficking Victims) Bill [NIA 29/17-22] be agreed.