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

Executive Committee Business – in the Northern Ireland Assembly at 12:15 pm on 15th February 2022.

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Photo of Christopher Stalford Christopher Stalford DUP 12:15 pm, 15th February 2022

I call the Minister of Justice, Mrs Naomi Long, to move the Consideration Stage of the Bill.

Moved. — [Mrs Long (The Minister of Justice).]

Photo of Christopher Stalford Christopher Stalford DUP

Members have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in the provisional grouping of amendments selected list. There are two groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1 to 11 and amendment Nos 18 to 24, which deal with sexual offences and serious harm, anonymity, court proceedings and guidance. The second debate will be on amendment Nos 12 to 17, which deal with trafficking and exploitation.

I remind Members who intend to speak that, during the debates on the two groups of amendments, they should address all of the amendments in the group on which they wish to comment. Once the debate on each group has been completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

Clause 1 (Voyeurism: additional offences)

Photo of Christopher Stalford Christopher Stalford DUP

We come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 11 and amendment Nos 18 to 24. Within this group, amendment No 8 is consequential to amendment No 7. Amendment No 22 is consequential to amendment No 21. Amendment No 23 is consequential to amendment No 19. Amendment No 24 is consequential to amendment Nos 18 and 19. I call the Chairperson of the Committee for Justice, Mr Mervyn Storey, to move amendment No 1 and address the other amendments in the group.

Amendment Nos 1 and 2 not moved.

Photo of Christopher Stalford Christopher Stalford DUP

As no amendments have been moved, we must dispose of clause 1 before returning to the group 1 debate.

Clause 1 ordered to stand part of the Bill.

Photo of Christopher Stalford Christopher Stalford DUP

We now return to the group 1 amendments. I call the Chairperson of the Committee for Justice, Mr Mervyn Storey, to move amendment No 3 and address the other amendments in the group.

Amendment No 3 not moved.

Photo of Christopher Stalford Christopher Stalford DUP

As no amendments have been moved, we must dispose of clause 2 before returning to the group 1 debate.

Clause 2 ordered to stand part of the Bill.

New Clause

Photo of Christopher Stalford Christopher Stalford DUP

We return to the group 1 amendments. I call the Minister of Justice, Mrs Naomi Long, to move amendment No 4 and address the other amendments in the group.

Photo of Naomi Long Naomi Long Alliance

I beg to move amendment No 4:

After clause 2 insert—

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Abuse of position of trust: relevant positions


 


2A.—(1) The Sexual Offences (Northern Ireland) Order 2008 is amended as follows.


(2) In Article 2 (interpretation), after paragraph (4) insert—


‘(4A) “The Department” means the Department of Justice.’


(3) In Article 28 (positions of trust), in paragraph (1)(b), for ‘an order made by the Secretary of State’ substitute ‘regulations made by the Department’.


(4) After Article 29 insert—


‘Positions of trust: further categories


29A.—(1) For the purposes of Articles 23 to 26, a person (A) is in a position of trust in relation to another person (B) if—


(a) A coaches, teaches, trains, supervises or instructs B, on a regular basis, in a sport or a religion, and


(b) A knows that A coaches, teaches, trains, supervises or instructs B, on a regular basis, in that sport or religion.


(2) In paragraph (1)—


‘sport’ includes—


(a) any game in which physical skill is the predominant factor,


(b) any form of physical recreation which is also engaged in for purposes of competition or display,


‘religion’ includes—


(a) a religion which involves belief in more than one god,


(b) a religion which does not involve belief in a god.


(3) Paragraph (1) does not apply where A is in a position of trust in relation to B by virtue of circumstances within Article 28.


(4) The Department may by regulations amend paragraphs (1) and (2) so as to add or remove an activity in which a person may be coached, taught, trained, supervised or instructed.’


(5) In Article 80—


(a) the heading becomes ‘Orders and regulations’,


(b) after paragraph (3) insert—


‘(4) Regulations under Article 28(1)(b) or 29A(4) may not be made unless a draft of them has been laid before and approved by a resolution of the Assembly.


(5) Regulations under this Order may include any incidental, supplementary, consequential, transitory, transitional or saving provision which the Department considers necessary or expedient.’” — [Mrs Long (The Minister of Justice).]

The following amendments stood on the Marshalled List:

No 5: After clause 2 insert—



Private sexual images: threatening to disclose


 


2B.—(1) The Justice Act (Northern Ireland) 2016 is amended as follows.


(2) In section 51 (disclosing private sexual photographs and films with intent to cause distress)—


(a) for subsection (1) substitute—


‘(1) A person commits an offence if—


(a) the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (‘the relevant individual’) appears,


(b) by so doing, the person intends to cause distress to that individual, and


(c) the disclosure is, or would be, made without the consent of that individual.”,


(b) in subsection (2)—


(i) after ‘disclose’ insert ‘, or threaten to disclose,’


(ii) for ‘the individual mentioned in subsection (1)(a) and (b)’ substitute ‘the relevant individual’,


(c) in subsection (4), after ‘disclosure’ insert ‘, or threat to disclose,’


(d) in subsection (5), in each place, for ‘the individual mentioned in subsection (1)(a) and (b)’ substitute ‘the relevant individual’,


(e) after subsection (7) insert—


‘(7A) Where a person is charged with an offence under this section of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove—


(a) that the photograph or film referred to in the threat exists, or


(b) if it does exist, that it is in fact a private sexual photograph or film.’,


(f) for subsection (8) substitute—


(8) A person charged with an offence under this section is not to be taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat.’


(3) In section 53 (meaning of ‘private’ and ‘sexual’), in subsection (5), for ‘the person mentioned in section 51(1)(a) and (b)’ substitute ‘the relevant individual (within the meaning of section 51)’.


(4) In Schedule 4 (private sexual photographs etc: providers of information society services)—


(a) in paragraph 3(1), after ‘sub-paragraph (2)’ insert ‘, (2A)’,


(b) in paragraph 3(2), after ‘if’ insert ‘, in the case of information which consists of or includes a private sexual photograph or film,’,


(c) after paragraph 3(2) insert—


‘(2A) This sub-paragraph is satisfied if, in the case of information which consists of or includes a threat to disclose a private sexual photograph or film, the service provider had no actual knowledge when the information was provided—


(a) that it consisted of or included a threat to disclose a private sexual photograph or film in which another individual appears,


(b) that the threat was made with the intention of causing distress to that individual, or


(c) that the disclosure would be made without the consent of that individual.’,


(d) in paragraph 4(2), for ‘section 51’ substitute ‘section 52’,


(e) for paragraph 4(3) substitute—


‘(3) ‘Information society service’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request).’” — [Mrs Long (The Minister of Justice).]

No 6: In clause 3, page 6, line 12, after “paying” insert—



“(which is not limited solely to the exchange of monies for this purpose)”. — [Mr Storey (The Chairperson of the Committee for Justice ).]

No 7: In clause 7, page 10, leave out lines 16 to 26 and insert—



“&#x0027;information society service’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request);”. — [Mrs Long (The Minister of Justice).]

No 8: In clause 7, page 10, leave out lines 33 to 37. — [Mrs Long (The Minister of Justice).]

No 9: In clause 15, page 16, line 10, after “court” insert—



“if satisfied that it is in the public interest or the interests of justice”. — [Mr Allister.]

No 10: In clause 15, page 19, line 20, at end insert—



Exclusion of public from appeal hearing


 


27E.—(1) Paragraph (2) applies where a hearing is to be held by the Court of Appeal of any one or more of the following—


(a) an application for leave to appeal against a conviction or sentence (or both) in respect of a serious sexual offence;


(b) an appeal against a conviction or sentence (or both) in respect of a serious sexual offence;


(c) an application for leave to refer a sentence in respect of a serious sexual offence to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (reviews of sentencing);


(d) a reference under that section of a sentence in respect of a serious sexual offence;


(e) an application for leave to appeal under section 12 or 13A of the Criminal Appeal (Northern Ireland) Act 1980 (appeals against findings of not guilty on ground of insanity and unfitness to be tried) in respect of a serious sexual offence;


(f) an appeal under either of those sections in respect of a serious sexual offence.


(2) The court must give an exclusion direction before the beginning of the hearing (but this is subject to paragraph (4)).


(3) Paragraph (2) applies whether or not the hearing relates to other offences as well as a serious sexual offence.


(4) Paragraph (2) does not apply if the time at which the exclusion direction would fall to be given (in the absence of this paragraph) is not within the lifetime of the complainant.


(5) Where an exclusion direction is given under this Article in relation to a hearing, the direction—


(a) has effect from the beginning of the hearing, and


(b) subject to paragraph (7), continues to have effect until, in respect of each relevant application or appeal to which the hearing relates, either—


(i) a decision has been made on the application or appeal, or


(ii) the application or appeal has been abandoned.


(6) In paragraph (5) a ‘relevant application or appeal’ means any application, appeal or reference mentioned in paragraph (1).


(7) The exclusion direction does not have effect during any time when any of the following decisions is being pronounced by the court—


(a) a decision to grant or refuse leave to appeal;


(b) a decision on an appeal;


(c) a decision to grant or refuse leave to make a reference under section 36 of the Criminal Justice Act 1988;


(d) a decision on such a reference.


(8) In this Article—


‘complainant’ has the meaning given by Article 27A(7), reading the reference in Article 27A(7) to the trial as a reference to the hearing;


‘effect’ has the same meaning as in Article 27A (see Article 27A(7));


‘exclusion direction’ is to be read in accordance with Article 27F(1);


‘sentence’ has the same meaning as in Part 1 of the Criminal Appeal (Northern Ireland) Act 1980;


‘serious sexual offence’ has the same meaning as in Article 27A (see Article 27A(7)).


(9) A reference in this Article to a hearing is not to be taken to include any proceedings on an application for leave to appeal, or on an application for leave to refer a sentence, that are of a kind which (ignoring this Article) are not held in open court.


 


Exclusion from appeal hearings: further provision


 


27F.—(1) Subject to paragraph (5), in Article 27E and this Article “exclusion direction” has the meaning given by Article 27A(2).


(2) The following provisions apply in relation to exclusion directions given under Article 27E as they apply in relation to exclusion directions given under Article 27A—


(a) Article 27B(1) to (3), (5) and (6);


(b) Article 27C; and


(c) Article 27D(1) to (4).


(3) As well as being subject as mentioned in Article 27D(4), an exclusion direction given under Article 27E has effect subject to section 24 of the Criminal Appeal (Northern Ireland) Act 1980 (right of accused to be present at hearing of appeal and limitations on that right).


(4) Rules made under section 55 of the Judicature (Northern Ireland) Act 1978 may make provision about any matter mentioned in paragraph (4) of Article 27B or paragraph (5) of Article 27D (reading the references in those paragraphs to Article 27A(2)(c) and (d), Article 27B(6) and Article 27C(3) as references to those provisions as applied by this Article).


(5) In their application by virtue of this Article, Article 27A(2) and the provisions mentioned in paragraph (2)(a) to (c) are to be read as if—


(a) in the definition of ‘the complainant’ in Article 27A(7), the reference to the trial were a reference to the hearing, and


(b) in the definition of ‘persons directly involved in the proceedings’ in Article 27A(7), sub-paragraph (e) were omitted.” — [Mrs Long (The Minister of Justice).]

No 11: After clause 15 insert—



Guidance about Part 1


 


15A.—(1) The Department of Justice must issue guidance about—


(a) the effect of this Part, and


(b) such other matters as the Department considers appropriate as to criminal law and procedure relating to Part 1 in Northern Ireland.


(2) The guidance must include—


(a) information for use in training on the effect of this Part as it considers appropriate for its personnel, and


(b) the sort of information which it seeks to obtain from personnel for the purpose of the assessment by it of the operation of this Part.


(3) Personnel in subsection (2) being any public body that has functions within the criminal justice system in Northern Ireland which the Department of Justice considers appropriate.


(4) A person exercising public functions to whom guidance issued under this Part relates must have regard to it in the exercise of those functions.


(5) The Department of Justice must—


(a) keep any guidance issued under this Part under review, and


(b) revise any guidance issued under this Part if the Department considers revision to be necessary in light of review.


(6) The Department of Justice must publish any guidance issued or revised under this section.


(7) Nothing in this Part permits the Department of Justice to issue guidance to a court or tribunal.” — [Mr Storey (The Chairperson of the Committee for Justice ).]

No 18: After clause 19 insert—



“CHAPTER 2


 


CAUSING OR RISKING SERIOUS HARM


 


Consent to harm for sexual gratification is no defence


 


19A.—(1) For the purpose of determining whether a person (‘A’) who inflicts serious harm on another person (‘B’) is guilty of a relevant offence, it is not a defence that B consented to the infliction of the serious harm for the purpose of obtaining sexual gratification.


(2) The reference in subsection (1) to obtaining sexual gratification is to obtaining it for any person (whether for A, B or some other person).


(3) In this section—


‘the 1861 Act’ is the Offences Against the Person Act 1861,


‘relevant offence’ means any of these—


(a) an offence under section 18 of the 1861 Act,


(b) an offence under section 20 of the 1861 Act,


(c) an offence (but not common assault) under section 47 of the 1861 Act,


‘serious harm’ means any of these—


(a) wounding within the meaning of section 18 of the 1861 Act,


(b) grievous bodily harm within the meaning of section 18 of the 1861 Act,


(c) actual bodily harm within the meaning of section 47 of the 1861 Act.


(4) However, this section does not apply in the case of an offence under section 20 or 47 of the 1861 Act where—


(a) the serious harm consists of, or is a result of, the infection of B with a sexually transmitted infection in the course of sexual activity, and


(b) B consented to the sexual activity in the knowledge or belief that A had the sexually transmitted infection.


(5) Nothing in this section affects the operation of any rule of law, or any statutory provision (as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954), relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence.” — [Mrs Long (The Minister of Justice).]

No 19: After clause 19 insert—



Offence of non-fatal strangulation or asphyxiation


 


19B.—(1) A person (‘A’) commits an offence if the first and the second conditions are met.


(2) The first condition is that A intentionally—


(a) applies pressure on or to the throat or neck of another person (‘B’), or


(b) does something to B, of any other sort, amounting to battery of B.


(3) The second condition is that A—


(a) intends A’s act to affect B’s ability to breathe or the flow of blood to B’s brain, or


(b) is reckless as to whether A’s act would affect B’s ability to breathe or the flow of blood to B’s brain.


(4) An offence under this section is committed irrespective of whether in fact A’s act affects B’s ability to breathe or the flow of blood to B’s brain.


(5) An offence under this section can be constituted by virtue of A’s act irrespective of how A’s act is done (for example, by use of a hand or another part of A’s body or by A making use in any way of an object of any kind).


(6) It is a defence to an offence under this section for A to show that B consented to A’s act, but the defence is not available if—


(a) B suffers serious harm as a result of A’s act, and


(b) A—


(i) intended A’s act to cause B to suffer serious harm, or


(ii) was reckless as to whether A’s act would cause B to suffer serious harm.


(7) No question as to B’s consent to A’s act may be considered for the purpose of this section unless the question is relevant in relation to the defence in this section.


(8) The matter of B’s consent on which the defence in this section may be based is to be taken to be shown by A if—


(a) evidence adduced is enough to raise an issue with respect to the matter, and


(b) the contrary with respect to the matter is not proved beyond reasonable doubt.


(9) If—


(a) an act is done in a country or territory outside the United Kingdom,


(b) an offence under this section would be constituted by virtue of the act if done in Northern Ireland, and


(c) the person who does the act is a United Kingdom national or is habitually resident in Northern Ireland,


the person commits an offence under this section as if the act is done in Northern Ireland.


(10) A person who commits an offence under this section is liable—


(a) on summary conviction, to imprisonment for a term not exceeding 2 years or a fine not exceeding the statutory maximum (or both),


(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).


(11) In this section—


‘the 1861 Act’ is the Offences Against the Person Act 1861,


‘serious harm’ means any of these—


(a) wounding within the meaning of section 18 of the 1861 Act,


(b) grievous bodily harm within the meaning of section 18 of the 1861 Act,


(c) actual bodily harm within the meaning of section 47 of the 1861 Act,


‘United Kingdom national’ means an individual who is—


(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,


(b) a person who under the British Nationality Act 1981 is a British subject, or


(c) a British protected person within the meaning of the British Nationality Act 1981.


(12) Schedule 4 contains consequential amendments in connection with this section.” — [Mrs Long (The Minister of Justice).]

No 20: In clause 21, page 21, line 20, leave out paragraph (a) and insert—



“(a) sections 16 to 19A,”. — [Mrs Long (The Minister of Justice).]

No 21: In schedule 3, page 27, leave out lines 18 to 28 and insert—



“&#x0027;&#x0027;information society service;’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request);”. — [Mrs Long (The Minister of Justice).]

No 22: In schedule 3, page 27, leave out lines 33 to 36. — [Mrs Long (The Minister of Justice).]

No 23: After schedule 3 insert—



“SCHEDULE 4


 


OFFENCE OF NON-FATAL STRANGULATION OR ASPHYXIATION: CONSEQUENTIAL AMENDMENTS


 


Police and Criminal Evidence (Northern Ireland) Order 1989 (NI 12)


 


1. In Article 53A (qualifying offences for particular investigative purposes), in paragraph (2)—


(a) the second of the two sub-paragraphs numbered as (t) is renumbered as (u),


(b) after the second of those two sub-paragraphs insert—


‘(v) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Sexual Offences Act 2003 (c. 42)


 


2. In Schedule 5 (lists of offences for making particular orders), after paragraph 171G insert—


‘171H An offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Criminal Justice (Northern Ireland) Order 2008 (NI 1)


 


3. In Schedule 2 (lists of offences for sentencing matters), in Part 1—


(a) the second of the two paragraphs numbered as 31A is renumbered as 31B,


(b) after the second of those two paragraphs insert—


 


‘The Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022


 


31C An offence under section 19B (non-fatal strangulation or asphyxiation).’


 


Domestic Violence, Crime and Victims Act 2004 (c. 28)


 


4. In section 7A (certain rules of evidence and procedure), after paragraph (b) of subsection (2) insert—


‘(c) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 (NI 14)


 


5. In Article 2 (unjustifiable punishment of children), in paragraph (2)—


(a) omit the ‘and’ preceding sub-paragraph (e),


(b) after sub-paragraph (e) insert—


‘(f) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’” — [Mrs Long (The Minister of Justice).]

No 24: In the long title, leave out “rules applying with respect to certain sexual or violent offences prevention orders” and insert—



“certain rules of law and procedure for the purpose of protecting people from harm”. — [Mrs Long (The Minister of Justice).]

Photo of Naomi Long Naomi Long Alliance

In moving amendment No 4, I want to speak to the amendments tabled in my name and those tabled by others. With your indulgence, Mr Principal Deputy Speaker, I would like to take this early opportunity to register my personal thanks to the Committee for Justice for its support and commitment in completing the scrutiny of the complex provisions of the Bill and of my proposed amendments in a very short time frame.

I appreciate that my challenging legislative programme, progressing five Bills to legislation over two years, has generated an intense period of activity for the Committee and placed considerable demands on its members. I would like to thank current and previous Chairs, Deputy Chairs, members and, indeed, officials for their continuing engagement and commitment throughout this period. I am most grateful to the Committee for supporting the Bill at its introduction and for supporting the amendments that I tabled for debate at this stage. I intend to speak to my amendments in the first instance, and, as part of that approach, I will address Jim Allister's amendment to clause 15. I will then speak to the Committee's amendments before handing over to others to raise any points that they wish to make on the amendments that have been tabled today.

The Bill that I introduced to the Assembly in July 2021 has two key principles: to enhance public safety by implementing certain elements of the report of the Gillen review of serious sexual offence cases and the parallel review of the law on child sexual exploitation and sexual offences against children; and to improve services for victims of trafficking and exploitation.

The package of amendments that are tabled in my name, the first of which is amendment No 4 and which relates to the abuse of positions of trust, will expand the public protection elements of the Bill.

Amendment No 4 extends the existing legislation covering abuse of positions of trust of a child, which is in articles 23 to 31 of the Sexual Offences (Northern Ireland) Order 2008. Offences under articles 23 to 26 of the 2008 Order currently apply only where the position of trust is in the context of a statutory responsibility, covering areas such as education, state care and criminal justice.

The aim of the abuse of trust provisions is to protect young people who are in particular situations where there is some element of dependency on an adult that is often combined with an element of vulnerability on the part of the young person. The offences are not intended to cover all situations where an adult might have contact with or a supervisory role over under-18s. Rather, they are intended to capture those relationships where there is a significant imbalance in power between the adult and child and where there is scope for that position of trust to be abused. It is crucial that a careful balance is maintained. While the provisions seek to protect all under-18s by virtue of the Northern Ireland statutory age of sexual consent, they primarily relate to persons who are aged 16 or 17. The amendment builds on the existing provision to bring additional persons who are outside the statutory sector within the scope of the offences.

I had originally intended to develop that proposal for introduction in the next mandate. However, responding to recent developments in other jurisdictions and to a growing number of requests for the law in Northern Ireland to be changed, I decided that that important additional protection should be provided now.

The amendment proposes to extend the current provisions for abuse of positions of trust of a child to cover the abuse of positions of trust held in sports and faith settings. Proposed new clause 2A(4) inserts new article 29A into the 2008 Order. Proposed new article 29A(1)(a) brings within the scope of the abuse of trust defences those adults who coach, teach, train, supervise or instruct a child under 18 on a regular basis in a sport or religion. Proposed new article 29A(1)(b) provides for a new requirement that the adult person knows that they coach, teach, train, supervise or instruct the child under 18 on a regular basis in that sport or religion. That requirement is additional to the reasonable belief requirements, and the associated evidential burden is set out in the existing abuse of trust offences.

The aim of the additional requirement is twofold: first, to prevent the positions of trust being drawn too broadly; and, secondly, to strengthen the requirement for a prior connection or contact between the adult who is in the position of trust and the young person. For example, it would cover the situation where an adult regularly preaches to a congregation of people where they have never personally met the young person and do not know that the young person is a member of their congregation. In such a situation, the adult will not be considered to be in a position of trust over the young person.

Proposed new article 29A(2) defines "sport" and "religion" for the purposes of article 29A(1). "Sport" is defined as including:

"any game in which physical skill is the predominant factor" and:

"any form of physical recreation which is also engaged in for purposes of competition or display".

"Religion" is defined as including:

"a religion which involves belief in more than one god" and:

"a religion which does not involve a belief in a god."

Proposed new article 29A(3) provides that anyone who is considered to already be in a position of trust under existing article 28 of the 2008 Order is not brought within the scope of the proposed new provisions.

The four offences to which those provisions apply and the available penalties remain unchanged. The offences are: sexual activity with a child; causing or inciting a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act.

I know that some of those giving evidence to the Committee during its scrutiny of the Bill thought that the scope of those provisions should be wider. The draft provisions are based on the evidence that has been presented to date and on the particular concerns and risks that were identified by stakeholders. They were developed following my Department's review, consultation and engagement on the issues that are involved and were informed by detailed examination of the experience of other jurisdictions. That work involved my officials working in close partnership with the NSPCC, to which I add my thanks.

The proposed provision will extend the scope of the legislative definition of a person in a position of trust to those areas where the evidence presented to date is strongest: those of sport and religious settings. To extend the law beyond the proposed settings would require a more extensive consultation and engagement process in order to identify and fully explore any particular areas of potential concern to ensure that legal intervention would be required. I have grave concerns about widening the scope of the provisions beyond what I propose in advance of that sufficient, robust evidence being secured to warrant such a further extension.

In extending the provisions, I am conscious of the importance of achieving a proportionate balance between protecting our young people in vulnerable situations and respecting their right to give legal consent to sexual activity from the age of 16. Framing the positions of trust too widely runs the risk of over-criminalising young people who could be considered to be breaking the law: for example, a person aged 18 having a consensual sexual relationship with a person aged 16 or 17. Those with innocent intention who are enjoying a healthy relationship should not be inappropriately criminalised. Without careful targeting, abuse of trust provisions could prohibit any person over 18 having sex with anyone aged 16 or 17, effectively raising the age of sexual consent by stealth. That could well attract legal challenge based on the rights of an individual defined under article 8 of the ECHR, the right to respect for private and family life, which would be directly engaged.

It is crucial that a robust definition for the offences is established in order to promote clarity as to the application of the law and to withstand potential legal challenge. An inappropriate widening of the scope of the offences also has the potential to dilute their relative effectiveness. It is important that the law is strong and clear in its intent. I am content that limiting the extension of the abuse of trust offences to the categories set out in my amendment will achieve that. The amendment will ensure that further protection is focused on areas where a need for legal intervention has been clearly evidenced.

I stress that the abuse of position of trust provision comprises only one element of the wider, robust legislative framework used by the PSNI and the Public Prosecution Service (PPS). That provides very extensive and significant protections to young people from the harm caused by sexual offending. The framework makes it an offence for anyone to engage in sexual activity with someone under the age of 16, whether or not they consent to that activity. Where an offender in a case is in a position of trust, that will always be treated as a significant aggravating factor by the courts at the point of sentencing. However, I am keeping the door open on the policy, should there be future evidence of a further gap in protection. With that in mind, new article 29A(4) provides for an enabling power to allow further sectors to be brought within or removed from the scope of the provisions. Any such change would be made by way of regulations subject to the Assembly's draft affirmative procedures. There would be no requirement to wait for primary legislation, should sufficient evidence to support a future change be presented.

Amendment No 5 proposes a new offence of threats to disclose private sexual photographs and films with intent to cause distress. Section 51 of the Justice Act (Northern Ireland) 2016 already provides for the offence of disclosing private sexual photographs and films, an offence introduced as an amendment to the then Justice (No. 2) Bill by the Justice Committee of the time. The original provisions were based on the disclosure offence in England and Wales. I propose to extend the scope of that offence to include threats to disclose such images. I had originally committed to a review of the disclosure offence; it is important, however, to provide for that despicable offence now and to take the opportunity offered by the Bill to close a significant legislative gap.

Following the recent amendment of the disclosure provisions in England and Wales, which our proposed provisions mirror, we are now the only part of the UK that has not made threats to disclose an offence. Threats of that type are often used by partners or ex-partners of victims as a means of coercive control. They can make leaving an abusive relationship even more difficult, with the threat being used as a means of forcing the victim to remain for fear of the impact of the threatened disclosure. Such threats can cause serious psychological harm to victims and have significant and long-lasting negative impacts on the lives of those threatened.

Research published last year by the domestic violence charity Refuge found that one in seven young women have received threats that intimate photos will be shared without their consent.

Although that research is not specific to Northern Ireland, it gives an indication of the likely scale of the problem here. When speaking to victims, I have been shocked by the anguish and distress that is being caused by such threats. Amendment No 5 will provide equality of protection for those in our community who are affected by such threats. It sends out a very clear message that that form of intimidating and coercive behaviour cannot and will not be tolerated. Before I move on to the detail of the amendment, I assure the Assembly that the fundamental elements of the existing offence remain unchanged.

Under proposed new clause 2B(2), the existing offence is extended in scope to provide that it would be an offence for a person to make a threat to another individual to disclose a private sexual photograph or film in which that individual appears without their consent and with the intention of causing them distress. All but one of the remaining paragraphs in subsection (2) are technical amendments that are required to bring the remaining elements of the disclosure offence within the scope of the new offence. That includes all relevant definitions in section 51 the Justice Act (Northern Ireland) 2016 and the defences that are available to a defendant charged with a disclosure offence under that section. The one exception is the proposed provision detailed in clause 2B(2)(e), which will insert a new subsection into section 51 of the Act, providing:

"Where a person is charged with an offence ... of threatening to disclose ... it is not necessary for the prosecution to prove— (a) that the photograph ... exists, or (b) if it does exist, that it is in fact a private sexual photograph or film."

The sanctions for the new offence are consistent with the existing disclosure offence, where the available penalty on summary conviction is up to six months' imprisonment, a fine or both. On conviction on indictment, the penalty is up to two years' imprisonment, a fine or both.

I also highlight proposed new clause 2B(4), which will amend schedule 4 to the Justice Act (Northern Ireland) 2016. Schedule 4 to the 2016 Act relates to special rules for information society service providers. Those rules provide certain online service providers with protection from prosecution when they are merely storing, caching or hosting information and are unaware of illegal content. The amendment to the schedule is required in order to bring the offence of threats to disclose within the liability restrictions. Were such rules to be amended, devolved Administrations would be required to liaise with the UK Government to ensure that any amended draft provisions comply with their current position on intermediary liability.

The existing schedule 4 makes reference to the e-commerce directive, which sets rules that limit the legal liability that member states may impose on online intermediaries. The post-Brexit transition period has ended, so the e-commerce directive has ceased to have effect in the UK. The UK Government's policy, however, is that restrictions on intermediary liability should continue on a case-by-case basis. As a consequence, references to the directive are required to be removed from all new domestic legislation that falls within the scope of the UK's liability regime. That also necessitates a revised definition of "information society services". The amendment to the schedule in no way changes the scope of the provision. It simply involves a technical amendment to remove the reference to the e-commerce directive from the definition. The details in the amended definition are otherwise the same.

Similar liability restrictions for online service providers are included in clause 7 of the Bill, which relates to a breach of the extended anonymity of victims in sexual offence cases, and in schedule 3 to the Bill, which relates to the offence of a breach of anonymity of the suspect in a sexual offence case. Those provisions were drafted prior to the end of the post-Brexit transition period, so they contain reference to the e-commerce directive and require similar consequential amendments. I refer Members to my amendment Nos 7, 8, 21 and 22. Those amendments will ensure compliance with the UK Government's policy on intermediary liability and will also provide consistency of drafting in the Bill.

The next of my amendments, which is amendment No 10, will ensure that the additional protections that are afforded to victims of serious sexual offences by clause 15 of the Bill will not be undermined by allowing the public at large to attend appeal hearings.

Before speaking to my amendment No 10, however, I will address amendment No 9 to clause 15, which Jim Allister tabled. The provisions in clause 15 place a duty on the court to give an exclusion direction where a person is to be tried on indictment for a serious sexual offence. The exclusion direction would apply from the beginning of the trial and would ensure that only those with a specific role in court proceedings, as prescribed in the direction, remain in the court. The Member's amendment proposes to amend clause 15 to provide that an exclusion direction can be made at the discretion of the court, where the court considers that it is in the public interest, or in the interests of justice, to do so. In practice, that would mean that decisions on whether the public are excluded from the court would be decided on a case-by-case basis.

The high-profile rape trial in 2018, which was heard over 40 days to a packed public gallery, threw into the spotlight the many issues that affect the progress of serious sexual offence cases through the criminal justice system. The proposals in clause 15 for the exclusion of the public, and other measures in the Bill to further enhance the anonymity of the victim, implement recommendations that were made in the Gillen review of law and procedures in serious sexual offences, which was established in the wake of that trial. People may argue that that case was the exception, and that exceptions make bad law, but my proposals to change the law, and to provide for the exclusion of the public, are not a knee-jerk reaction to an exceptional case. That case led to Sir John's review. That review, however, involved an extended period of local, national and international research, followed by consultation with victims and their families; defendants and their families; the criminal justice agencies; and various support agencies. Such a review was long overdue to address the many issues that have long affected reporting and attrition rates by victims in such cases.

From his conversations with victims and their families, Sir John recorded that the reasons for fear of reporting included the sense of trepidation at the prospect of laying bare their most humiliating experience openly before the public, reflecting their feelings of shame and embarrassment in reporting the crime in the first place. The aim of clause 15 is to provide certainty for the victim of a serious sexual offence that, when the case comes to court, they will not have to give evidence about intimate and harrowing details in front of a public gallery. The Member's amendment would remove that certainty and mean that the police and the Public Prosecution Service would be unable to reassure victims that, if they decided to proceed with the case, the public would be excluded from the court.

That certainty is one of the most important aspects of my proposals in clause 15. The ability of the court to exclude the public where it is in the interests of justice to do so is already provided for in legislation. However, the review found that it is rarely used. That illustrates the need to provide certainty by placing a duty on the court to give an exclusion direction. A case-by-case approach, as the amendment proposes, would result in uncertainty for complainants and potential inconsistency in approach across different courts and localities.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Minister will be aware that article 6 of the European Convention on Human Rights guarantees an individual a fair trial and a public hearing, with exceptions for cases in which there is a determination that there should not be a public hearing. When the Human Rights Commission gave evidence to the Committee, it was very clear:

"this ... special measure ... should only be used where ... a ... need is identified. ... this would suggest that the consideration of such a measure should be taken on a case-by-case basis, taking account of the individual circumstances of the case."

The Human Rights Commission, reflecting the basic provisions of article 6 of the ECHR, is saying to the House, "Take it on a case-by-case basis". However, the Minister is saying to the House, "Impose a blanket ban, with no regard to case-to-case needs". Surely that is draconian beyond description.

Photo of Naomi Long Naomi Long Alliance

I recognise the importance of cases being open to the public and to public scrutiny, but many of us were profoundly affected as we watched people, who had travelled to Belfast, sit in a courtroom for their entertainment and watch a high-profile trial. Those people had neither an interest in the subject matter nor a connection with the case, but they found the spectacle of a court case to be a way of passing the time.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party 12:45 pm, 15th February 2022

I thank the Minister for giving way. Will she agree that, often, it is the victim who is on trial in such circumstances and that this would provide some degree of comfort to the many victims of sexual and domestic violence who have not come forward for fear of how their personal details and lives would be trailed across social media and public forums?

Photo of Naomi Long Naomi Long Alliance

The Member is, of course, right. That was exactly the context that I set out when I explained our rationale for the change. It is not something that the Department would choose to do lightly, because we recognise the importance of open justice and of people being able to see what happens. The courts can already decide to exclude people on a case-by-case basis. However, what this gives and what the case-by-case approach does not is certainty to victims and defendants that, when they give evidence in court, their anonymity will be protected and, in particular, that we will not end up with the kind of jigsaw identification that has, unfortunately, subjected many people who have come forward to give evidence in a case of that nature to speculative guesswork in the community as to who they might be.

We are trying to provide that to victims in line with the work that we have done with the judiciary. As I said, Sir John Gillen had extensive discussions with victims across the board with regard to ensuring that we would do it in a proportionate way. Of course, the judge has final discretion. Someone may have good reason to be there — for example, there will still be reporting of the case — so it is not as though the public will be unaware of the case or what is happening in it. It is about trying to exclude from the court people who have no business being there and who want access to the court for no reason other than nosiness or interest — call it what you wish. There is nothing to stop someone who believes that they have an interest making an application to the judge to sit in the public gallery and observe proceedings; for example, if that were necessary as a training exercise or, as I say, if the person was a member of the press, who will be routinely admitted to the court.

The fact that the case-by-case approach is used so rarely is evidence that it is insufficient to deal with the underlying problem that we face, which is that victims feel intimidated by the thought of having to open up about some of their most private, humiliating and traumatic experiences, knowing that there are people sitting in the gallery simply passing time. For the protection of victims, other witnesses and the defendant, such matters should not be aired in that kind of forum. The case-by-case approach, therefore, continues the uncertainty for complainants and a potential inconsistency that is unhelpful. Of course, as I have said, in a small jurisdiction like Northern Ireland, the need for certainty is critical to the protection of victims, but it is also important where cases are heard in local courts and the attendance of local residents — even family and friends — will lead to that jigsaw identification of the victim. Even where special measures are used, such as screens to protect the physical identity of a victim, voice recognition can lead to jigsaw identification.

The importance of the anonymity of the victim in serious sexual offence cases has long been recognised. Clause 15 provides certainty to complainants that the criminal justice system will further protect their anonymity and privacy and shield them from the pain and distress of recounting intimate and harrowing details in front of the general public. I hope that that certainty will enable victims to have greater confidence in the justice system and that more people will feel able to report when they have been the victim of a sexual offence, rather than suffer in silence.

As regards the concern that clause 15 interferes with the principle of open justice, under the proposals, bona fide representatives of news-gathering or reporting organisations are excepted from the exclusion direction, as are a relative or friend nominated by the complainant and the accused. The court also has the discretion to exempt any other person from the exclusion direction where it is in the interests of justice to do so. Press reporting of legal proceedings is an extension of the concept of open justice. It safeguards public interest and transparency in the courts and maintains public confidence in the judicial process. The certainty provided by clause 15 is fundamental to the protection that it offers. I therefore do not support the amendment from Mr Allister, and I urge other Members to join me in voting against it at the appropriate point, later in the proceedings.

My amendment No 10 will ensure that the additional protections afforded to victims of serious sexual offences by clause 15 will not be undermined by allowing the public at large to attend appeal hearings. The Gillen review concluded that the unrestricted access of the public to trials of serious sexual offences deterred, humiliated and intimidated complainants. As I have said, it warrants repetition: giving evidence at trial can be a terrible ordeal for victims, and it is made even more harrowing by having to discuss intimidate details in front of a public gallery. Sir John's recommendation for exclusion of the public was limited to trials in the Crown Court in serious sexual offence cases. However, the process in the Court of Appeal is such that the complainant and other witnesses can be called to give evidence. While that may not be a common occurrence, it is important that the level of protection provided to the victim's privacy and anonymity by clause 15 is also made available in the Court of Appeal.

Photo of Naomi Long Naomi Long Alliance

I will continue.

It is important that victims have certainty that, should a case go to appeal, the general public will not be in the court. The amendment adds new articles 27E and 27F to the provisions to be inserted into the Criminal Evidence (Northern Ireland) Order 1999 by clause 15. The new articles impose a duty on the court to give an exclusion direction where there is an appeal or application for leave to appeal against a conviction or sentence for a serious sexual offence. The appeal hearings to which an exclusion direction will apply are applications for leave to appeal or appeals against conviction or sentence in serious sexual offence cases; referrals of sentence in serious sexual offence cases under section 36 of the Criminal Justice Act 1988, which are referrals of sentences made by the director of the Public Prosecution Service to the court on appeal on the grounds of undue leniency; and applications for leave to appeal against findings of "Not guilty" on the grounds of insanity and unfitness to be tried.

Under the provisions, all persons are excluded from the court with the exception of members and officers of the court, persons directly involved in the proceedings, a relative or friend of the complainant as nominated by the complainant, a relative or friend of the accused as nominated by the accused, bona fide representatives of news-gathering or reporting organisations and any other person excepted from the exclusion direction at the discretion of the court where it is in the interests of justice to do so. In addition to the accused and the complainant, persons directly involved in the proceedings are legal representatives acting in the proceedings, any witness while giving evidence in the proceedings and any person acting in the capacity of an interpreter or other person appointed to assist a witness or the accused.

Recognising how harrowing the court experience can be for victims of serious sexual offences, the provisions allow the complainant and the accused to nominate a relative or friend to remain in the court. The court can then specify the nominated persons as excepted from the exclusion direction and therefore allowed to remain in the court. The court can exercise that power either on application by a party to the proceedings or of its own motion where it is in the interests of justice to do so.

I could offer a lot more detail on the amendment. However, I believe that, in setting out the main points as I have, I have assured Members that, in cases where the complainant and other witnesses can be called to give evidence in the Court of Appeal, the amendment will ensure that they will not be further humiliated or intimidated by having to discuss such details in front of the general public.

I now wish to move to amendment Nos 18, 19 and 23, which are aimed at dealing with causing or risking serious harm.

Amendment No 18 inserts new clause 19A into the Bill. The purpose of the new clause is to place in legislation the current common law proposition, expressed in the 1993 case of R v Brown, that it is not a defence to claim that a person consented to their own serious harm for the purposes of sexual gratification. That is often referred to as the "rough sex defence". It is not a term that I am particularly comfortable with. The case of Brown involved a group of men involved in consensual sadomasochistic activity. In upholding their convictions for assault occasioning actual bodily harm, the House of Lords confirmed that a person cannot consent to their own serious harm.

Subsequent cases have cast some doubt on the extent of the application of the rule, and concerns have been raised over a perceived lack of awareness and understanding of the common law position. Research shows that a significant percentage of women experience unwanted behaviour, such as slapping, choking and gagging, during consensual sex. The rough sex defence has been the subject of considerable media attention following a series of cases where so-called rough sex was claimed to have gone tragically wrong, including in the case of backpacker Grace Millane in New Zealand, Natalie Connolly and, more recently, Sophie Moss. Having the position set out in legislation will clarify the law and ensure that a person may not rely on consent as a defence where serious harm occurs. The Assembly must respect individuals' freedom to choose to act as they wish within their intimate relationships. However, it is also incumbent on us to intervene to prevent serious harm and to protect those who may be vulnerable.

Photo of Christopher Stalford Christopher Stalford DUP

May I stop the Minister there?

Photo of Christopher Stalford Christopher Stalford DUP

I am grateful to the Minister for allowing me to stop her.

It is 12.55 pm. The Business Committee has agreed to meet at 1.00 pm. I therefore propose, by leave of the Assembly, to suspend the sitting until 1.30 pm. When the sitting resumes, the Member to speak will be the Minister.

The debate stood suspended. The sitting was suspended at 12.55 pm.

On resuming (Mr Deputy Speaker [Mr Beggs] in the Chair) —

Debate resumed.

Photo of Naomi Long Naomi Long Alliance 1:30 pm, 15th February 2022

I will pick up where I left off on the need for the Assembly to respect individuals' freedom to choose to act as they wish in their intimate relationships. However, we also recognise that it is incumbent on us to intervene to prevent serious harm and to protect those who may be vulnerable. With that in mind, proposed clause 19A provides that, where serious harm occurs, it is not a defence to a relevant offence that the person consented to the infliction of that harm for the purpose of obtaining sexual gratification. It does not matter who derives the sexual gratification, whether it be the defendant, the injured party or another person. Relevant offences are defined as the offences of assault occasioning actual bodily harm; wounding with intent to cause grievous bodily harm; and grievous bodily harm under the Offences against the Person Act 1861. Serious harm is defined in accordance with the provisions of the 1861 Act for each of those offences. An exception is included for cases where a person is infected with a sexually transmitted infection, provided they knew about the infection and the activity was consensual. That exception reflects the common law position and ensures that a person can rely on their partner's consent, should the infection be transmitted in such cases. Importantly, it also recognises the party's article 18 ECHR rights. Finally, the clause clarifies that no enactment or rule of law:

"relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence" will be affected. Established exceptions include such matters as receiving medical treatment or participating in an organised sporting contest such as a boxing match. Enacting the clause will align Northern Ireland with the law in England and Wales, where a similar provision was included in the Domestic Abuse Act 2021.

The last of my amendments that introduce substantial new policy content are amendment Nos 19 and 23, which introduce new clause 19B and schedule 4 to create a new stand-alone offence of non-fatal strangulation. Strangulation can cause a variety of effects on the body ranging in seriousness and, sadly, in some cases, causing death. It can be used consensually in intimate relationships but can also be used to instil fear and exert control in abusive relationships, or it may be a purely violent act. Leaving consensual acts aside, research shows that those who use strangulation in an abusive context can be extremely dangerous. Studies have shown strangulation to be a regular feature in relationships that ended in domestic violence killings. Those who use strangulation have been found to be up to eight times more likely to go on to commit more serious offences against their partners. The true scale of the problem in Northern Ireland is not known. PSNI records show 502 charges of strangulation between 2002 and 2019. Of those, only 20 resulted in a prosecution for strangulation. The low numbers leading to prosecution reflect the limitations of the existing offence of strangulation. Under the Offences against the Person Act 1861, strangulation can be charged only in the Crown Court and only where there is also proof of an intention to commit a further indictable offence.

As a result, prosecutors often have no choice but to charge a person with other assault offences that do not recognise the unique nature of strangulation and do not always adequately address the harm done.

Clause 19B introduces a new free-standing offence, similar to that which was included in the Westminster Domestic Abuse Act in 2021. Having listened closely to experts in the field and having given careful consideration to responses to the public consultation, we have developed what I consider to be clearer and more inclusive text for this clause. Under the clause, an offence is committed if two conditions are met. The first condition is that a person:

"applies pressure on ... the throat or neck of another person" or does some other act that amounts to battery. The second condition is that they intended to affect the other person's ability to breathe or the flow of blood to their brain, or is reckless in that regard. That description of the act and its intended or likely effect avoids the use of the terms "strangulation" or "suffocation" etc, which are potentially open to restrictive interpretation. It will be possible to prosecute the offence even if no physical harm occurs. It is the act and the intention, or recklessness as to injury, that matters. The clause will therefore allow prosecutions to follow in appropriate cases where strangulation is used as a controlling tool or to frighten a victim but causes no injury. The clause also makes clear that the offence can be committed by using other body parts or items to apply pressure to the neck; it is not just the use of the hands.

The defence of consent will not be available if serious harm occurs, whether or not the injured party consented to the act. That means that, effectively, the new offence will be treated in the same way as other serious assaults that are listed in new clause 19A when it comes to claims of consent. "Serious harm" is defined in the same terms as in new clause 19A, which I covered a few moments ago. As with that clause, this provision aims to strike a balance between respecting an individual's private life and protecting them from serious harm. It differentiates between acts that may have been consensual between partners, from which no or limited injury occurs, and those from which more serious harm results.

The clause also allows for the offence to be prosecuted in Northern Ireland where it is committed abroad by a UK national or a person who is habitually resident in Northern Ireland. If, for example, a couple from Northern Ireland were on holiday abroad when the offence occurred, a prosecution could be pursued in Northern Ireland on their return. I expect that that extension will be particularly welcomed by victims of domestic abuse, who may, sadly, find themselves in such a situation.

The new offence is triable in the Magistrates' Court or the Crown Court, depending on the seriousness of the offence, and provides for higher maximum sentences than those available for the commonly used alternative assault offences. The maximum sentence in the Magistrates' Court of two years' imprisonment, a fine not exceeding the statutory maximum or both is available for cases that are tried summarily. The sentencing powers of the Magistrates' Court are normally restricted to imprisonment up to six months with or without a fine. The higher maximum reflects the seriousness of the new offence, even when the choice of court is at the lower level. For cases tried in the Crown Court, a maximum sentence of 14 years' imprisonment, a fine or both are available. Again, that is a relatively high maximum, but it is consistent with the maximum penalty for the recently created Northern Ireland domestic abuse offence and is proportionate to deal with the worst cases.

The new clause also introduces a range of consequential amendments that are set out in new schedule 4. The schedule adds the new offence to existing lists of offences of violence that are prescribed for other purposes, such as enabling extended periods of imprisonment to be passed or other orders made.

I have, to everyone's great relief, I am sure, reached the last amendments in my name in this group.

Some Members:

Hear, hear.

Photo of Naomi Long Naomi Long Alliance

Amendment No 20 adjusts the commencement provisions in clause 21 to capture the new additions to the Bill, and amendment No 24 is a procedural amendment to the long title to reflect the nature of the rough sex defence and non-fatal strangulation additions to the Bill.

Having concluded my remarks on the amendments tabled in my name — this will disappoint some of those who cheered my earlier announcement — I turn to the two amendments in this group that the Committee tabled. Amendment No 6 relates to the definition of payment in relation to the sexual services provisions in clause 3, and amendment No 11 relates to guidance on Part 1. I assure the Members who were prematurely excited at the idea that I was drawing my remarks to a close that I do not intend to be as thorough on these matters; I am sure that Committee members will have much to say on them.

I understand that Committee amendment No 6 was intended to extend the definition of "payment" that is in proposed new article 41(5) of the Sexual Offences (Northern Ireland) Order 2008, as provided for in Part 1 of schedule 2 to the Bill and as referenced in clause 3. Article 41(5) applies to the offence of paying for the sexual services of a child. However, the amendment would extend the definition of "payment" in article 64A of the 2008 Order, which is headed "Paying for sexual services of a person".

As Members are aware, that is the provision that was introduced by Lord Morrow in the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which criminalised paying for sex. I believe that it was not the intention of the Committee to amend that provision, and I understand that the Committee intends to table a corrected amendment at Further Consideration Stage that will propose that the definition of "payment" in article 41(5) in the 2008 Order be extended to clarify that payment is not limited solely to the exchange of money. Should the Chair proceed with that amendment, I look forward to debating the issue at that stage.

The Committee's other amendment in this group, amendment No 11, introduces a new clause that proposes to place a duty on the Department to provide and review in due course guidance, training and data collection in respect of Part 1 of the Bill. I understand and appreciate the intention behind the amendment. However, I have some concern about the consequential impact of such statutory provision on existing departmental resources and on the resources of our operational partners that are responsible for delivery of the Bill's provisions. I know that Committee members appreciate the wider resource concerns that were raised by the PSNI relating to the cumulative effect of the roll-out of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 and the Protection from Stalking Bill. Indeed, the Chair wrote to me highlighting PSNI concerns and expressing the Committee's support for their resolution.

Part 1 of the Bill includes 15 clauses and four schedules, introducing nine new offences covering a wide range of provisions from sexual offences to the implementation of a number of Gillen recommendations. I am somewhat concerned about the potential impact that a requirement on the Department in the Bill would have, particularly in creating a focus on box-ticking exercises and statutory administrative requirements rather than the delivery of a challenging programme. I am, as with all legislation, committed to ensuring the provision of appropriate guidance, training and data collection. It is a priority of the Department and relevant justice agencies to ensure the effective implementation of any new provisions. There is a clear danger that an amendment imposing such duties could place a burden on the Department and its delivery partners, particularly in light of pressures that have already been identified and of likely budgetary pressures. While I remain somewhat sceptical about the need for that amendment, I appreciate and respect the strength of the Committee's conviction that it is necessary. On that basis, I am prepared to offer it my support.

That concludes my opening remarks on this group of amendments. I look forward to hearing the views of those present and to responding during the winding-up speech to the points that were raised. Thank you.

Photo of Mervyn Storey Mervyn Storey DUP

Before addressing the amendments, I wish, with your indulgence, Mr Deputy Speaker, to make some general remarks about the Bill in my capacity as Chair of the Justice Committee.

The Committee supports the Bill, the additional protections that it will provide to victims of sexual offences and the improvements that it will make to the services for victims of trafficking and exploitation, and it wants to see its passage concluded before the end of the mandate. Also, the Committee supports in principle the amendments that the Minister tabled for today, which will add further protections by way of new offences in the legislation. The Committee has tabled a number of amendments that will do that as well, particularly in trafficking and exploitation. We will return to those in the debate on the group 2 amendments.

As I outlined during the debate at Second Stage, behaviours such as upskirting and downblousing are becoming much more prevalent and are used to distress, humiliate, control or coerce victims of such despicable behaviour. Clause 1 will provide new offences to tackle those behaviours.

While I cannot speak to the amendments that were tabled by the Committee to clause 1, following our decision to not move them, I want to assist the House in understanding the Committee's position on that clause. The decision not to move the amendments was based on discussions with the Minister last Thursday on the wording of the amendments. The Committee is supportive of clause 1. However, we still have some questions about whether the new offences are framed entirely satisfactorily, given the views and concerns that were expressed in evidence that we received on that Part of the Bill.

We want to ensure that they will be as effective as possible. Therefore, we intend to further consider the potential need for amendments to clause 1 in conjunction with the Department of Justice officials following Consideration Stage. The same applies to the provision of a new offence of cyber-flashing. The Minister has indicated that, in principle, she supports the inclusion of that in the Bill but, again, has concerns about the wording of the amendment.

Unfortunately, the reality is that child sexual exploitation is happening in cities, towns and rural areas across Northern Ireland. Deep concerns have been raised about the level of under-reporting, the attrition rates and the pitifully few successful prosecutions of sexual offences in Northern Ireland for a significant period. The Bill goes some way in trying to improve the response to those unacceptable realities. It received widespread support in the written and oral evidence received by the Committee. The frustration was that the Bill did not go far enough. A wide range of proposals to extend the protective measures and support victims was brought to the attention of the Committee in the 42 written submissions received and during the 12 oral evidence sessions with key stakeholders. The Committee also met privately an individual who shared their experience of being a victim and who outlined the devastating impact that it had on not only them but their family.

The Committee explored the issues with the Department of Justice officials, the PSNI and the Public Prosecution Service, both in writing and in oral evidence sessions, focusing in particular with the PSNI and the PPS on Part 1 of the Bill and the operational aspects for which they will have responsibility. To assist consideration of the specific issues raised in the evidence received, the Committee also commissioned a research paper on the practice in other jurisdictions to address cyber-flashing and deepfake pornography. To assist with scrutiny of the technical aspects of the Bill, the Committee sought advice from the Examiner of Statutory Rules on the range of powers in the Bill to make subordinate legislation. She was satisfied that the rule-making powers provided in Bill are appropriate.

The Committee considered the provisions of the Bill and the potential amendments at 18 meetings before agreeing its report on the Committee Stage at its meeting on 27 January. The Committee has undertaken further discussion and consideration of its amendments to the Bill since the report was agreed. I thank Committee members for their contributions to the detailed, robust and careful scrutiny of the Bill and of issues that were raised in evidence during Committee Stage. We have considered all aspects of the Bill and the proposed amendments in as full and thorough a manner as possible within the time frame that we had, taking account of the fact that the end of the mandate is not far away. As Chair, I state my personal appreciation for the diligence of the Committee in carrying out that work. I also thank all the organisations that provided very helpful written and oral evidence and the departmental officials who provided additional information and clarification throughout the process. I can assure you that a considerable amount of clarification went between us and the departmental officials.

Most importantly, I place on record the Committee's thanks and appreciation to the individuals who met Committee members privately and shared their personal experience of being a victim. They painted a stark picture of the devastating impact that their experience had on them and their family at the time of the offence, during the handling of the case by the criminal justice agencies and since then. That set out to the Committee in a very clear and very stark way the responsibility that we have to get the Bill right and to ensure that it is comprehensive and deliverable.

Photo of Robin Newton Robin Newton DUP 1:45 pm, 15th February 2022

I thank the Member for giving way. You talked about our support for victims. I spent a short time on the Policing Board, as I know you did, Mr Chairman. I was naive enough to think that human trafficking did not happen in Northern Ireland until it was described very graphically by the PSNI on a number of occasions.

One photograph from the PSNI showed the inside of a bedroom that had been used for prostitution. On the architrave of the doorway and on the door itself were scratch marks, which indicated that the person, or perhaps, over time, persons, who had been in the bedroom was determined to, or was trying to, escape from the situation.

Mr Chairman, do you agree with me that, when the Bill achieves Royal Assent, we must ensure that those who are engaged in human trafficking are prosecuted and that their victims are not only protected for a short time but helped to return to what might be regarded as a normal life through the rehabilitation and support that we offer them as they move out of that trafficked situation? For that reason, we need to be assured that the Bill gets those aspects right.

Photo of Mervyn Storey Mervyn Storey DUP

I thank the Member, although I have to indicate to him that those issues will come up in the debate on the second group of amendments. I certainly concur with his comments, however, and we will come back to the need for help for victims and recognition of the serious situation that people sadly find themselves in on the streets of Northern Ireland.

The Committee also appreciates the support and assistance that was provided by Assembly staff, including the Research and Information Service (RaISe), the Examiner of Statutory Rules, the Communications Office, Assembly Broadcasting, Hansard and, in particular, the Bill Clerk and our Committee Clerk and her team. They all played a very important role in supporting the Committee to undertake its legislative scrutiny of the Bill. I place on record the Committee's appreciation to them, given the timescales to which they had to work and the challenges that they faced owing to the availability of personnel.

I will now address the Committee's amendments in group 1, before turning to those tabled by the Minister and by Mr Allister.

Amendment No 6 is the Committee's proposed amendment to clause 3. It provides clarity that payments can be other than financial, and I welcome the Minister's indication that she is not opposed to the amendment. Although it is supportive of clause 3, the Committee discussed with Department of Justice officials whether "paying" was too narrowly defined and whether it should be extended to include paying though inducements other than money. The officials advised that payment was not necessarily defined as being financial and could include, for example, accommodation, food or drugs. They also stated that, until evidence was received by the Committee from the children's organisations about the definition not fully reflecting the reality that children and young people face when they are exploited, groomed or abused, no particular issue had been raised about intangible rewards. In the officials' view, it was not a significant gap that needed to be addressed, and they felt that the current definition provided a sufficiently broad base through which a wide range of financial and non-financial rewards would be captured.

The Committee acknowledged that the children's organisations raised important issues regarding the reality of child sexual exploitation and the type of inducements that are used to entice children, but it also accepted the difficulty in trying to cover intangible inducements in legislation. It is of the view that the wording of the current definition does not make it clear that payment is not necessarily defined as financial but could include goods and services such as those described by departmental officials. In the interests of achieving clarity, the Committee therefore agreed to table amendment No 6. Although the Minister initially, and without having had sight of its text, indicated that she would not support the amendment, I welcome her change of position, as outlined in the Assembly today.

Amendment No 11 is the Committee's proposed amendment to place a duty on the Department to provide and review, in due course, guidance, training and data collection on Part 1 of the Bill. A number of stakeholders referenced the need for guidance, training and data collection on a number of the clauses in Part 1, including for the new offences of upskirting and downblousing. While the PSNI advised of the need for operational guidance in respect of live streaming and how it would be captured and explained to provide the necessary evidence, other organisations highlighted that comprehensive guidance and public education was required to ensure that new offences were fully understood. That is an issue that we need to pay relevant attention to. Bringing forward legislation is all well and good, but there has to be a grasp and understanding of the purpose and intent of that legislation. As was the case with other justice legislation, such as the Domestic Abuse and Civil Proceedings Act and the Protection from Stalking Bill, the provision of training for the criminal justice agencies and the judiciary on the new offences and data collection to assess the implementation of the new offences and their effectiveness were highlighted as being necessary.

Departmental officials advised the Committee that the Department intended to establish a task and finish group on which all operational partners would be represented to address the issues of practitioner guidance and awareness-raising of the new offences with all those on whom they impact. The Committee is of the view that a clear understanding and effective implementation of the new offences by the criminal justice agencies, which leads to successful prosecutions, is vital. Otherwise, it will be impossible to build victims' confidence in the system and encourage them to come forward, report offences and engage and participate in the criminal justice process. I trust that victims and the community will take on board what we have been saying in all of this: it is about bringing those responsible before the courts and to justice. It is vital that all the elements and component parts of the preparation, understanding and implementation of the legislation work in a collective manner.

The Committee believes that guidance, training and data collection are fundamental to the successful implementation of Part 1 of the Bill, particularly with regard to the new offences that are being created, one of which — downblousing — is unique to this jurisdiction. The Committee, therefore, agreed to bring forward amendment No 11, which places a duty on the Department to provide and review, in due course, the guidance, training and data collection in relation to Part 1 of the Bill. I trust that that will not be a tick-box exercise, but something that is meaningful and purposeful, because that is the intent of our amendment.

Initially, the Minister indicated to the Committee that she was committed to ensuring the provision of guidance, training and data collection. However, conscious of the proposed Budget and related constraints, and concerned that it would place a focus on administration rather than delivery, she said that she did not support the amendment. I welcome her comments in the House today and the recognition that guidance is a key component in the effective implementation of the legislation. I ask the Assembly to support the Committee's amendment.

That brings me to amendment Nos 7, 8, 9 10, 21 and 22, which relate to anonymity in the Court of Appeal. In the evidence received by the Committee, there was widespread support for the exclusion of the public from court hearings of serious sexual offence cases, as provided for by clause 15. Views were expressed that that would be less intimidating and daunting for the victim and would encourage more victims to engage with the justice system and not to withdraw from the process, as they would be giving their evidence in front of fewer people and be more assured that their anonymity would be protected. Anonymity is of particular importance in a small jurisdiction such as Northern Ireland.

Requests were also made for clause 15 to be widened to cover all sexual offences cases, all sexual offence cases involving a child or cases involving domestic abuse offences. However, as has been stated, the Northern Ireland Human Rights Commission said that, while it is permissible for criminal proceedings to be carried out in the absence of the public, that is considered to be a special measure that should be used only where a special protective need is identified. The commission expressed its view that consideration of such a measure should be taken on a case-by-case basis, taking account of the circumstances of the case, and advised that consideration be given to the adoption of an individual approach within a structured framework, which could include a judicial decision at the commencement of the trial.

The Committee noted that the provision implements Sir John's Gillen's recommendation, which was reached following a significant period of engagement and consultation with a wide range of stakeholders and the public. It also provides the court with the discretion to permit any other person to remain in the court where it considers it in the best interests of justice so to do.

The Committee believes that that is a step in the right direction in trying to reduce the trauma of these types of cases for victims and to encourage them to engage with the criminal justice system on such cases. The Committee is therefore content with the inclusion of this provision in the Bill, and, given that it is logical to carry the principle of the exclusion of the public from court hearings of serious sexual offences cases through the entire court process, including any appeal hearings against conviction or sentence, the Committee also agreed that it is content to support the principle of the amendments tabled by the Minister in this regard. However, given the time constraints to complete the Committee Stage of the Bill, the Committee was not able to consider the text of those amendments — amendment Nos 7, 8, 10, 21 and 22 — in detail, to seek out the views of key stakeholders or to carry out adequate scrutiny of them.

We heard the rationale that Mr Allister gave in the House today on amendment No 9, which he tabled. He set before Members his reasons why he believes that his amendment should be supported in the House this afternoon.

Amendment No 4 seeks to introduce a new clause dealing with abuse of position of trust. The Minister outlined the background to the amendment and the reasons for the approach that she has taken to widen the scope of the abuse of position of trust provision. Following consideration of the NSPCC briefing paper on its Close the Loophole campaign to extend abuse of trust legislation, the Committee sought further information on the position and recent developments in England and Wales and other relevant jurisdictions, including Jersey and the Republic of Ireland, as it was aware that the Minister intended to table an amendment to widen the scope as part of the Bill.

Although the text of the Minister’s amendment was not available at the time, a range of organisations commented on the proposal to legislate in this area in the written evidence provided to the Committee on the Bill. The key themes in the evidence provided were: as broad a range of extra-curricular activities as possible should be covered to ensure that 16- and 17-year-olds are protected from potential grooming; technological advances mean that there is an even more pressing need to extend the abuse of trust provisions; and if the scope is too narrow, there will be loopholes that perpetrators will still be able to target.

When the NSPCC, Barnardo’s and the Children's Commissioner attended to give oral evidence on the Bill, they made it clear that an amendment focused only on extending the scope to cover activities in sports and religious settings would not go far enough to protect children. When the text of the Minister’s amendment was available, the Committee invited further views from those organisations. In response, the Children’s Commissioner advised that she was deeply concerned that provisions to address current legislative gaps in safeguarding children and young people from abuse and exploitation by those in positions of trust should not be limited only to certain settings. She noted:

"abuse of trust protections in law should take account of the power dynamics of sexual abuse and exploitation and reflect that children and young people can be subject to abuse by those in positions of trust across a wide range of relationships and activities rather than instead focusing on a limited number of settings."

The Children’s Commissioner also had significant concerns about the Department's position that further evidence must be provided that children have been sexually abused by adults in positions of trust outside of sporting and religious settings before further amendments to widen the scope can be considered.

Barnardo’s stated that the proposed amendment was too narrow in scope. In its view, the legislation should be as strong as possible from the outset. It stated:

"Children deserve protection in the law now, no matter what the setting, and should not have to wait until an incident of abuse in an additional setting is exposed to receive that protection."

It advised the Committee that it knows that perpetrators of child abuse and sexual exploitation deliberately seek out loopholes in the law and settings where they will go undetected.

That is, sadly, what we face in our society. Surely we, as legislators, have a duty to do all that we can to ensure that we give the best possible protection in those circumstances.

The NSPCC noted that the proposed amendment mirrored the approach for England and Wales adopted in the Police, Crime, Sentencing and Courts Bill and reiterated its view that it does not go far enough, nor is it expansive enough to protect children from adults in a position of trust in relation to them. The NSPCC stated that adults working in non-statutory settings in a position of trust to 16- and 17-year olds in areas other than religion and sport will remain outside the law, which conflicts with the views expressed in the Department's public consultation on child sexual exploitation law and in the joint stakeholder workshop that the NSPCC facilitated with the Department in May 2021, where respondents overwhelmingly supported an inclusive approach to legislative change that included all adults working in a position of trust in relation to a child. The NSPCC was also concerned that the amendment lacked clarity and could cause confusion about which activities fall within the definition. It wanted to see the amendment widened to give 16- and 17-year-olds protection from all adults in a position of trust in relation to them, regardless of the setting.

The Committee discussed those issues and concerns with departmental officials, who outlined the rationale for the approach being taken and assured the Committee that the Department had worked closely with the NSPCC in the development of the policy proposals. However, the amendment does not appear to reflect the views of the NSPCC, the Children's Commissioner or other children's organisations, and the Committee was also concerned about the strong views expressed by the Children's Commissioner regarding the position of the Department.

While the Committee welcomes the intention to extend the abuse of trust provisions, it wants to see legislation in this area that is robust and inclusive and affords protection to as many young people as possible. Members were not fully convinced that amendment No 4 does that and therefore considered tabling an amendment to extend the scope to include those in a position of trust in relation to young people who would not be included in the extension to cover certain activities carried out in sport and faith settings.

The Committee advised the Minister of the intent of its proposed amendment, and she responded, indicating that widening the provision would have significant consequences. Her concerns centred around whether widening the scope could attract legal challenge based on the rights of an individual under article 8, the right to private and family life. She was also concerned that there was a clear risk of inappropriately increasing by stealth the age of sexual consent, which would be open to successful legal challenge. In her view, care should be taken to avoid that and to ensure that any undue interference in a young person's ability to freely express their autonomy is limited. The Minister also stated that framing the positions of trust provision too widely ran the risk of over-criminalising young people, who could be considered to be breaking the law if, for example, a person aged 18 had sexual relations with a person aged 16 or 17.

The Committee discussed the issues raised by the Minister and, given the limited time before Committee Stage had to be completed, agreed not to table an amendment to extend the scope at this stage but rather to take the opportunity at Consideration Stage to seek further information and clarification of the basis for the Minister's concerns. The Committee will therefore support amendment No 4, but it would be helpful if the Minister could outline how robust her amendment is, given the view expressed that it is not expansive enough to protect children from adults in a position of trust; clarify how exactly widening the scope could interfere with article 8 rights in a way that her amendment does not, bearing it in mind that the Children's Commissioner and children's organisations raised no concerns in that regard; and say on what basis there is any greater risk of inappropriately increasing by stealth the age of sexual consent or criminalising young people unnecessarily, taking into account the fact that the provision relates solely to those in positions of trust. The Committee may wish to further consider its position on the issue before Further Consideration Stage.

I turn to amendment Nos 5, 18, 19, 20 and 23, which reference new offences. The Minister has outlined the background to and the purpose of the amendments. The Committee received comments welcoming the proposal in amendment No 5, and organisations viewed it as addressing a clear need. Departmental officials confirmed that, while the amendment sought to widen the scope of the existing offence of disclosure of private photographs or films with the intent to cause distress to include the threat to disclose, it does not alter the fundamental elements of the main disclosure offence. The PSNI stated that it is likely that the threats will be made in some part through online means and highlighted the increasing workload of the cybercrime unit and the public protection arrangements and the resulting resource implications. The Committee will consider that issue as part of its scrutiny of the draft Budget for 2022-25. The Committee is content to support amendment No 5 in principle but was unable to properly scrutinise the text of the amendment in the time that was available to it.

In July 2021, the Department advised the Committee that work was being undertaken to develop amendments to set in legislation the common case law position that a person cannot lawfully consent to their serious harm for the purposes of sexual gratification. While the text of the proposed amendment was not available at that time, the Committee drew attention to the Minister's intention as part of its call for evidence on the Bill. A range of organisations commented on the issue, with many stating that the law is not fit for purpose in dealing with violent crimes where the term "rough sex" is used as a defence. They wanted to see an amendment that would abolish it as a defence in criminal proceedings. The PSNI highlighted that it was essential that the gravity and the high-risk indicators that are attached to the occurrences of strangulation are recognised. The Northern Ireland Human Rights Commission referred to the need to ensure that it is implemented in a way that is compliant with human rights law.

Departmental officials subsequently outlined to the Committee that, normally, the common law does not treat rough sex as a defence. However, the amendment will put clarity and certainty into the law in the interests of victims and will ensure that, where serious harm within the defined text of the amendment occurs, the perpetrator will not be able to raise the claim that the victim consented to the harm being inflicted. The amendment also makes it clear that there are no limits on the nature of the relationship between the parties, making its application across the board absolutely clear.

The Department also advised the Committee that, given the close link between rough sex and non-fatal strangulation, the Minister was also tabling an amendment to introduce a new offence of non-fatal strangulation or asphyxiation, with the intention that the defence of consent will not be available for the new offence where serious harm occurs. The Department had previously briefed the Committee on the results of a consultation on such an offence that had indicated strong support for a hybrid offence triable in the Magistrates' Court or the Crown Court and for lengthy maximum sentences in both. At that time, it indicated that legislation covering that would be brought forward in the next Assembly mandate.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party 2:00 pm, 15th February 2022

I thank the Member for giving way. He may recall from when he was a member of the Policing Board having received a presentation from the National Crime Agency (NCA) about the Dark Web and the strangulation offence. Perpetrators were giving online classes on the Dark Web on how to control their partners. In his view, does the amendment go far enough to include those who would teach others, via the Dark Web, some of those evil habits?

Photo of Mervyn Storey Mervyn Storey DUP

We are trying to go as far as we can within the remit of the powers that pertain in Northern Ireland. The Member will be aware that a Bill is going through the House of Commons in relation to the use of various technological means. That communications Bill will have an impact, because, sadly, no matter how much we legislate and how much we try to curtail the activities of those who want to engage in that dreadful behaviour, they will always seek another means.

Sadly, we have come to learn more of what goes on on the Dark Web. It can instil only greater determination in us all, whether in this House or in other legislatures, to do all that we possibly can to make sure that we have closed down every opportunity for people to exploit others, cause serious harm and lead to sad circumstances and situations for young people, for families and in homes right across society.

It is a start and a move in the right direction, but I take the point that, as legislators, we must continue that work. The Minister shares the view that we must use every possible legislative means to bring these issues to the attention of the police and, eventually and hopefully, into a courtroom.

I have a few final comments about these amendments. These issues were brought to the attention of the Committee during the Committee Stage of the Domestic Abuse and Civil Proceedings Bill, and there were calls at that time for the legal framework to be strengthened and for the introduction of a specific offence of non-fatal strangulation. The Public Prosecution Service also indicated that, despite the seriousness of these types of assault, non-fatal strangulation was very difficult to prosecute and the Criminal Justice Inspection Northern Ireland in its 2019 report, 'No Excuse: A Thematic Inspection of the Handling of Domestic Violence and Abuse Cases by the Criminal Justice System in Northern Ireland', recommended that the Department should review, with input from relevant stakeholders, how potential inadequacies in current legislation regarding the act of choking or strangulation by defendants could be addressed.

The need for the legislative framework to be strengthened in those areas is clear, and the Committee, therefore, in principle, supports amendment Nos 18, 19, 20 and 23 to provide clarity and certainty in relation to the common-law case position that a person cannot lawfully consent to their serious harm for the purposes of sexual gratification and to provide for a new offence of non-fatal strangulation or asphyxiation. Unfortunately, the text of what are detailed amendments was not available in time for the Committee to consider them in depth, seek the views of stakeholders or carry out further proper scrutiny before the end of Committee Stage.

Finally and briefly, on amendment No 24, while the Committee supported the long title as drafted, if the proposed amendments in this group are made, I understand that the long title will need to be amended to better reflect the Bill's content. When the Minister makes her concluding remarks, she will perhaps give an assurance that the purpose of that is to ensure that it fits the content of the Bill and is not to widen its scope in any way.

I conclude my comments as Chair. My party colleagues will contribute to the debate from the DUP's perspective.

Photo of Sinéad Ennis Sinéad Ennis Sinn Féin 2:15 pm, 15th February 2022

Incidents of violence against women and girls are at epidemic levels across Ireland and further afield. Incidents of sexual violence, abuse and gender-based violence are alarmingly on the rise.

The Justice (Sexual Offences and Trafficking Victims) Bill represents the latest in a series of important pieces of legislation that demonstrate our commitment to tackling the scale of the problems.

Domestic abuse, inappropriate touching, sexual assault, stalking, harassment and image-based sexual abuse are just some of the issues that women and girls have to deal with on an all too regular basis. We rightly talk about the need for a zero tolerance approach to sexual harassment and abuse. That is crucial if we are truly to tackle the scale of the problem.

The reality for many women, however, is that the criminal justice system is not a friend or ally. It often represents a failure to tackle crimes and perpetrators and a failure to protect the best interests of victims in court. It is a failure that, all too often, favours the abuser over the victim, and it often represents trauma and humiliation for the victim.

I am proud that, over the past 24 months, the Assembly has taken a stand to reverse that trend and build a criminal justice system that protects women and girls and victims of abuse, and aims to find and punish perpetrators.

The Domestic Abuse and Civil Proceedings Act, the Protection from Stalking Bill, the Criminal Justice (Committal Reform) Bill and now the Justice (Sexual Offences and Trafficking Victims) Bill are all major pieces of legislation that show our commitment to tackling gender-based and sexual violence.

The Bill introduces important provisions to protect victims of sexual offences from the risk of identification and to protect their dignity and privacy. The Bill will exclude the public from hearings of sexual offence cases and introduce additional reporting requirements on such cases. That measure will increase victims' confidence to report their experiences to the police and to know not only that their case will be taken seriously but that they will be protected against indignity, humiliation and additional stress throughout their journey through the justice system. Mr Allister's amendment No 9 to clause 15 flies in the face of that. It is a clever attempt to undermine and undo what was a clear recommendation of the Gillen review. For that reason, we will oppose that amendment.

I welcome the proposed amendment that will prohibit the so-called rough sex defence from being used in courts by abusers who have killed or seriously harmed victims during sex, only to claim that their victims consented to that harm. Sadly, at least three women have been killed in the North by men who claimed that the women had consented to the violence, including, most recently, the tragic case of Patrycja Wyrebek in August 2020. Let me make it clear: there is no excuse or justification for strangling or beating a woman to death during sex. It is wrong and abhorrent that, despite the fact that legal precedent has been set that victims' consent to sexual gratification is not a defence, the defence continues to be used. Abusers, not their victims, are to blame. Victim blaming and victim shaming are unacceptable, and I am pleased to support the Minister's amendment that will explicitly prohibit the use of that defence.

I also support the proposed amendment that will introduce a new offence of "non-fatal strangulation or asphyxiation". Strangulation is a particularly vicious and deplorable act. It is common for strangulation to leave no visible signs of injury, but it leaves long-lasting fear and harm. Strangulation is, by its very nature, an act that is intended to terrify its victim. It is also an overwhelmingly gendered crime. Even more stark is the evidence that, if a person has been strangled, the chances of their being murdered by their abuser increases eightfold. Therefore, there is an urgency to tackling this increasing problem, so I am pleased to support the introduction of a new offence of non-fatal strangulation, which will, once and for all, tackle the problem head-on.

In drawing my remarks to a close, I thank, as the Chair did, the representative organisations and, more importantly, the victims of these crimes who gave up their time to help the Committee with its deliberations. We very much appreciate that. I also thank Linda Dillon, my predecessor on the Committee, who sat on the Committee for a long time and made an important contribution to the Bill.

It was a clear priority for the Justice Committee, when we scrutinised the Bill, to ensure that victims are always at the centre of any new legislation that we progress through the House. The Bill, the Committee's amendments and the Minister's amendments reflect our desire to ensure that victims receive the maximum support and protection. I urge Members to support the Committee's and the Minister's amendments, and I again urge Members to reject amendment No 9, given the harm that it would undoubtedly cause.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party

On behalf of the SDLP, I welcome the passage of the Bill to Consideration Stage. I, too, record our support for and thanks to the Bill Office staff, who worked tirelessly on it; the departmental officials, who worked very well not just with me, on behalf of the SDLP, but with the Committee; and the Minister. In these times, when we are navigating a new passage to deliver the Bill, although there is much negativity around our politics at the moment, I have to say that, despite that backdrop and on a more positive note, I sense that everybody on the Committee will work with the Minister and endeavour to find whatever pathway can be found to make sure that the Bill sees final passage. I commend all the Committee members for doing that, and I particularly commend the Minister for coming forward to work with us.

It is important legislation that will better protect victims of sexual offences and the deplorable crime of trafficking.

The Bill will implement certain elements of the Gillen report on serious sexual offence cases, including the exclusion of the public from all serious sexual offence hearings. It also includes provisions arising from the outcome of a review of the law on child sexual exploitation and sexual offences against children. Other provisions include the creation of the new offences of upskirting and downblousing. Those provisions are to be welcomed and are long overdue. I must comment, however, that we repeatedly heard from stakeholders, including Barnardo's and the Children's Commissioner, about how the implementation of the legislation is as important as its content.

The Bill is an important piece of child protection legislation. It will sit amongst a suite of legislation and add a layer of protection for children who may be targeted by adults. This is an opportune time to say that it is important to acknowledge the importance — it was raised repeatedly at the Committee — of the legislation being underpinned by age-appropriate standardised relationships and sexuality education (RSE) in schools. Children need to be empowered to understand what a healthy relationship looks like and to know when they are on the edge of behaviours that are leading to abuse.

I appreciate the fact that the Bill is making its way through the House, even in these uncertain times. I am also conscious that other Bills will necessarily be competing with it for space and time in the Chamber, so I will not go over all the comments made by the Minister or the rationale and thinking behind a lot of the amendments, nor, indeed, will I repeat the commentary that was very ably given by the Chair of the Committee, who put on record the many deliberations that the Committee went through.

I will quickly speak to the Committee amendments. Amendment No 6 will safeguard in particular young people who are dependent on the care of an adult for daily living. It is an apt amendment that puts payment by way of money in the Bill when so many young people are so dependent on an adult for love, support and welfare. I will also refer to amendment No 11, which gives the guidance. Whilst the Minister is not opposed to that amendment, I heard her words about it. Given that the Bill has brought forward unique provisions, such as that on downblousing, it is important, as with most legislation, to have clear guidance on how exactly those can be rolled out for the betterment of all.

Like others, I have serious concerns about amendment No 9. It would go some way towards unpicking the recommendations of Gillen, who gave clear and rational thinking for why they were proposed in the first place. Certainty for victims is needed to ensure that they do not suffer; in fact, cases may not even come forward to the courts because people who may be victims do not feel that the system is there to support them.

I particularly welcome amendment No 18, which is on the elimination of:

"consent to harm for sexual gratification" as a defence. It was disturbing to learn about the cases behind that piece that meant that it had to come forward, so it is appropriate that it is alongside the offence of non-fatal strangulation or asphyxiation. Again, given the unique nature of those acts, the Minister rightly pointed out that they cannot properly be captured in other legislation. It is therefore appropriate that they are in this Bill.

I will draw my comments on the group to a conclusion. I have to record again my overall disappointment that the Bill has undoubtedly been pared back from what was originally intended. It is important legislation that is focused on enhancing public safety and improving services for victims of trafficking and exploitation. It is therefore essential that the Bill safely progresses by the end of the mandate to ensure that some of the most vulnerable are afforded the protections that they need and deserve. On behalf of the SDLP, I am committed to working with others to do just that.

Photo of Paula Bradshaw Paula Bradshaw Alliance 2:30 pm, 15th February 2022

I start by re-emphasising what the Minister said about the purpose of the Bill: we are here to enhance public safety and to improve services for victims of trafficking and sexual exploitation. I support amendment Nos 4, 5, 7, 8, 10 and 18 to 24. I reserve my position on amendment Nos 6 and 11. I oppose amendment No 9, which fundamentally works against what the Bill is trying to achieve.

Amendment No 4 is a response to growing pressure in Northern Ireland and changes in the law in neighbouring jurisdictions. It establishes that the abuse of a position of trust regarding sexual offences against children can cover sport and faith settings. Its scope is based on a wide-ranging review of evidence. I thank the NSPCC for its input on the matter.

Amendment No 5 is essential in the modern world, as it covers threats to disclose sexual photographs. We are the only part of the UK where threatening to do that is not currently an offence. Ultimately, it is a matter of coercive control, so it needs to be tackled in law now that we have the opportunity to do so.

Amendment Nos 7 and 8, which I welcome, are consequential to those to tidy up the remaining elements of the disclosure offence.

I recognise that amendment No 6 is well intentioned, but it is evident that the amendment is not sufficiently detailed to achieve its purpose. Likewise, the intent behind amendment No 11 is clearly worthy, but some consultation is necessary on the significant resource that would be required and where it is to be taken from. I am sure that that will be returned to at Further Consideration Stage.

Amendment Nos 18, 19, 21 and 23 are important to emphasise that serious harm is an offence. That should seem obvious, but, for too long, loopholes have existed. They include the defence of consent and the restrictive interpretation of some terms for activity that may cause harm. The amendments, alongside amendment No 20, which is consequential, clarify that serious harm and recklessness that causes serious harm are offences. I welcome amendment No 24, which changes the long title of the Bill to reflect those changes and emphasises that serious harm is serious harm and that intent to cause it is intent to cause it.

Amendment No 9 is an attempt to reverse the fundamental issues raised by Gillen and others. It is based on the pretence — it is a pretence — that, in trials concerning matters of acute sensitivity, there should be bias in favour of public attendance rather than opposition to it. In practice, that bias is bound to cause distress to victims.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

Does the Member think that article 6 of the European Convention on Human Rights is biased?

Photo of Paula Bradshaw Paula Bradshaw Alliance

No. I will get to that in a minute. Thank you for your intervention.

Clearly, the balance in such serious cases needs to be shifted, not least to protect identity. There is no need for others to be present, except when specifically directed by the judge rather than by active participants in the trial. The judge will still decide ultimately, but the clear assumption will be in favour of privacy and sensibly so.

Let us remind ourselves that we are here to discuss serious sexual offences that lead to serious harm. For too long, the entire system has been biased against the victim. It has almost treated the victim as a perpetrator whose conduct, often at a time of high vulnerability or when another person is abusing his or her power, is assessed in public or even by the public. The Gillen review refers to the intense scrutiny faced by those participating in trials and emphasises that, while that is an inevitable consequence of open justice, open justice is not an absolute concept.

Scotland, Ireland, New Zealand and parts of Australia have already recognised that it is long past the time for some balance and have given victims much more faith in the system and in how they will be treated if they take a case forward. In Northern Ireland, that is reinforced by what is referred to in the review as the high risk of "public familiarity" in a small jurisdiction. It is small wonder that so few complainants come forward to face the intense glare of public familiarity and choose instead to suffer in silence. We must put an end to that.

Amendment No 9 would maintain that suffering and that silence. Amendment No 10 will move us in the right direction, away from that and towards a more just system.

Photo of Paul Frew Paul Frew DUP

I have not been on the Committee for Justice of late, but I have always taken a keen interest in justice matters. During my time in the Assembly, I have seen the clear journey taken by legislation since justice was devolved to Northern Ireland. In the 2011-16 mandate, there was the Justice Act (Northern Ireland) 2015 and the Justice Act (Northern Ireland) 2016. There is now the Justice (Sexual Offences and Trafficking Victims) Bill, to which we can add domestic violence legislation and the stalking piece that is going through the Assembly. It would be remiss of me not to mention the contribution that Lord Morrow made to that journey. Every time I look at any legislation to do with sexual offences and trafficking victims, I look at it through the prism of Lord Morrow's work and the foundation that he laid to ensure that it builds on his work and does not diminish it in any shape or form.

I have always taken a keen interest in such matters. In a previous term, I was able to amend the Justice Bill that brought in the child protection disclosure scheme. I must admit that I am still aggrieved at the way in which that scheme has been rolled out and used in practice. I do not believe that it is promoted enough or that people know about it enough in order to keep their children safe from individuals who are deemed to be a risk to them. Knowledge is important to parents. It is important that they be fully informed and are not the last to know if someone poses a risk. I know that time is short in the mandate, but I plead with the Minister to promote the child protection disclosure scheme in any way that she can. I would be grateful.

I also record my thanks and appreciation to the Minister for this term of work. I have always enjoyed jousting with her in the Chamber on various pieces of legislation. That leads to good legislation. Good, robust debate always helps in that. I also pay tribute to the Chair of the Committee, Mervyn Storey, my colleague in North Antrim, for his work in the Committee on scrutinising the Bill over the past year. We are grateful for that.

It is important that we support the Bill. It is part of the journey. It is important that we have a law against upskirting and downblousing. A colleague across the Chamber has already said how important it is to protect people, as have the Chair and the Minister. We all know of a case here in Northern Ireland. Adults, children and professional people need to be protected in that regard. With technology as it is nowadays, with a camera in everyone's hands, it is vital that we protect people. That is what law is all about, and clause 1 is a good clause.

On sexual grooming and the potential harm or danger to children in this age of technology, where you cannot necessarily see the person with whom you are communicating, it is vital that, when their parents cannot always see what they are at, children be protected in law as best they can be. It is important that clause 2 is in the Bill.

I am glad to see that new clauses have been tabled. When I first read the Justice (Sexual Offences and Trafficking Victims) Bill, I was disappointed that items that, I thought, would have made great law had been omitted. I am glad that the Minister is now pursuing such amendments, and I thank her for that.

I turn now to amendment Nos 4 and 5. Amendment No 4 relates to positions of trust, which is an issue that I have thought long and hard about. There is no doubt about it: when you are in a position of trust, you become a very powerful person. We must congratulate all those people who sacrifice parts of their lives to help coach, train, teach, supervise, instruct our children and pay a general interest in their growing up. They are an absolute godsend to parents, and, sometimes, when a parent cannot get through to a child, the local football coach or boxing coach can. Those people can have a massive positive bearing on the potential of a child, so it is a very powerful position to be in. It is very good to be in a position where we have people who I class as being community champions, and we should utilise them more in the justice setting to help steer young people who might not necessarily make team sports away from areas where they could get themselves into trouble and might end up with a criminal record.

There is great potential for community champions in that setting, but with that is the powerful flip side where a community champion can exact pressure or leverage on a young person, which has the potential to become really dangerous. So, it is important that we legislate for that to protect those people so that, when pressure is applied to get a place on the team or to please your coach, it is not used by the coach for their own ends. It is vital that we recognise that potential and try as best we can to legislate to protect the children who could be at risk. I suspect that a very small percentage of people are inclined to act in that way, but it is right that we protect every single child as best we can from the one or two people who are involved in such behaviour or have thoughts in that regard and would use their position of trust, as a community champion, for their own sexual gratification or anything else for that matter. So, it is important that that is legislated for.

I am glad to see amendment No 5 because it is not just the disclosure of a photograph, a picture or a video that does the damage; it is the potential and the threat of release or disclosure that can upset and change the course of somebody's life. If you have that threat hanging over anyone, you can alter their behaviour. You can demand all sorts of that person. So, the crime should not be the disclosure, which is criminal in itself: there should be legislation that covers the threat to disclose. That is where the leverage is and where there is potential for real harm and damage. So, I thank the Minister for tabling the amendment.

Before I move to amendment Nos 18 and 19, I will address amendment No 9, because I understand why the Member tabled it. I engaged with Gillen at the time of his review, and it struck me that something had to be done. The way that cases are reported in the press is sometimes deeply unfair. Time and time again, we see camera crews outside courts, and they will report on the court cases of that day. In most big cases, usually, you only hear one side on any particular day. When one side of a court case is reported — the defence or whatever — the other side of the argument may not be presented until a week or two later, and maybe, the journalist or broadcaster will not give that the same attention that they gave the other side two weeks before. Unfair reporting can skew and have an unfair bearing on any given case.

Of course, the cameras follow the people as they walk out of the court, and that is before anyone has been proven guilty. That can be harmful not only for the victim but the accused. I take the points that Mr Allister raised about article 6. We have to be careful about what we do. Whilst I acknowledge and agree that something needs to be done, we have to be careful how we do that. It strikes me that the best place for that to be decided is in the court, but we will see how that develops as the debate goes on.

As I promised, Mr Deputy Speaker, I go to amendment Nos 18 and 19. Amendment No 18 is a new clause, titled "Consent to harm for sexual gratification is no defence". The amendment is very important. It is something that I looked at in other pieces of legislation, and it was out of scope. I am delighted to see that amendment now, and I hope the House approves and passes it. There is absolutely no defence or justification for seriously harming anyone, either by wounding, grievous bodily harm or actual bodily harm, through a sexual act. There is absolutely no justification or defence, and no one should try to make that case. Of course, as the Minister rightly pointed out there is a history of courts believing that a person cannot consent to serious harm. It is great and good that we will put it down in law so there is no question or grey areas around that, and that we protect people who may be manipulated, bullied or coerced into sexual acts as best we can.

That brings me to the other amendment that is very close to that, and that is on the offence of non-fatal strangulation or asphyxiation. Again, that is something that I have looked at previously, and it was out of the scope of other Bills. I commend the Minister for acting on that also. The amendment adds a very long clause, and I have not got through all the ins and outs of what it actually does. In my limited understanding of the amendment, it covers a loophole whereby people think that that behaviour is acceptable. There should be no acceptance of that behaviour. I will read down new clause 19B:

"19B.—(1) A person (“A”) commits an offence if the first and the second conditions are met. (2) The first condition is that A intentionally— (a)applies pressure on or to the throat or neck of another person (“B”), or (b)does something to B, of any other sort, amounting to battery of B. (3) The second condition is that A— (a)intends A’s act to affect B’s ability to breathe or the flow of blood to B’s brain, or (b)is reckless as to whether A’s act would affect B’s ability to breathe or the flow of blood to B’s brain."

Reading that out is chilling, but it is necessary to have that in the statute book to make sure that we change behaviours in this land of ours. There is sickness out there, there are depraved minds out there, and we must do all we can to protect people from those who would act in such a way.

I believe that these amendments and clauses will do that. It is a step in the right direction; it is a further step on our justice journey. I welcome these amendments and clauses, and I hope that this Assembly sees fit to place them onto the blue pages of the Bill. I commend the work of the Minister and the Committee and hope that the amendments that I have spoken on pass. Thank you.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party 2:45 pm, 15th February 2022

Like Mr Frew, I have not had the opportunity to speak on this Bill on domestic and sexual abuse. I was pleased to have been involved in previous passages of such legislation. I am very pleased to see it here today, albeit a few years too late because of our suspension. I commend the Minister and the Committee for their hard work and their deliberations over the past two years. My colleague Sinéad Bradley explained very well the good relationship between the Minister and the Committee in wanting to put the needs of victims first in the work that they have been doing and the effort that they have made.

Minister, you will have heard my comments to Mr Storey in relation to amendment No 19. I accept what he said about the correlation between legislation here and the legislation on communications which, of course, is not a devolved matter. I hope that you might further explain how we can ensure that those who use the Dark Web for their evil acts eventually pay the price.

Forgive me, because I do not serve on the Justice Committee, but the other amendment I want to talk about is amendment No 5 in relation to offences against the person and the definition of someone who resides in or is a national of Northern Ireland. Minister, some people have exploited young people through online grooming. In one case, it led to the suicide of one of the young people, because he was threatened that the pictures he had sent to the other person would be published. It caused such concern, anxiety and depression that the young man subsequently took his life. Will the legislation allow you, Minister, through Interpol or whatever, to follow through and arrest the perpetrator, or have the likes of the European arrest warrant and the Brexit shambles had any impact in being able to pursue such offenders internationally?

Photo of Rachel Woods Rachel Woods Green

I welcome the opportunity to take part in this debate on the amendments to the Justice (Sexual Offences and Trafficking Victims) Bill. Like others, I want to say a huge thank you to all those individuals and organisations that gave evidence to the Committee. Their words, reflections and experience proved to be invaluable, as always, in scrutinising legislative proposals. Much of what we are discussing today is about using that evidence to strengthen the Bill's provisions and making sure that they are working in practice and delivering for those that they are intended to protect. I also welcome the constructive approach taken by the Minister and her Department throughout the Committee's scrutiny.

With regard to the upskirting and downblousing offences, I fully recognise the concerns expressed by the Minister at the Justice Committee last Thursday in relation to the proposals. However, it is disappointing that those issues were not resolved long in advance of the debate and before the deadline for submission. Throughout the Committee's evidence gathering, concerns were raised about a potential loophole in the construction of the new offences whereby an alleged perpetrator could effectively acquit themselves by claiming that what they did was simply a joke. Members of the Committee heard from victims, those with extensive knowledge of a case here, trade unions, children and women's sector organisations, and Victim Support NI. All of them questioned the narrow scope of the clauses and the motives that the prosecution could rely on.

Indeed, Professor Clare McGlynn from Durham University agreed with the common concern among a wide range of organisations that clause 1 as drafted would not effectively deal with the scenario that is similar to a case that we well know here. She advised the Committee that, if the "just for a laugh" defence was not addressed, the Bill would become ineffective.

Unsurprisingly, the Committee took that very seriously, but we were given evidence that such a case would be covered. The obvious solution to addressing the practical joke defence would be to include it in the list of purposes, but, of course, that brings the unintended consequence of criminalising behaviour that might otherwise have fallen way beyond what the original intent of the new offence was trying to capture.

There is no doubt that those issues are highly complex and that care must be taken when attempting to address them, but I am not fully satisfied that, as it stands, the inherent weaknesses in the construction of the offence have been overcome. In Professor McGlynn's view, the solution is not to list more motivations for upskirting and downblousing but to focus on consent. I absolutely agree with that, yet, when we explored that with officials, we were told that it was unworkable. We were also given a suggestion for an alternative to the consent-based approach that included recklessness as to whether the victim suffers distress, alarm or humiliation, which draws on Scots law or Irish law. Ultimately, that was what we decided to pursue. I accept that the reasonable person element may not be workable, and I look forward to working with clause 1 as drafted at this stage at the Committee meeting this week.

I conclude my remarks on clause 1 by reminding the House, the Minister and the Department of the urgent need to address the whole issue of consent and how it is understood in our laws and courts when it comes to sexual offences. As noted by the Gillen review, our definition of consent is:

"vague, with the result that juries may bring sexual stereotypes into play in determining whether there was consent."

The Gillen report stated clearly:

"there should be a discernible shift towards a requirement for some measure of affirmative or participative expression of consent and away from a focus on resistance as a means to prove the absence of consent."

I cannot stress enough how important that statement and recommendation is for our criminal justice system. Gillen proposed that the Sexual Offences (Northern Ireland) Order 2008 should be amended:

"• to follow the example in New Zealand and to provide that a failure to say or do anything when submitting to a sexual act, or to protest or offer resistance to it, does not of itself constitute consent; • to expand the range of circumstances as to when there is an absence of consent to include, for example (i) where the complainant submits to the act because of a threat or fear of violence or other serious detriment such as intimidation, coercive conduct or psychological oppression to the complainant or to others; (ii) where the only expression of consent or agreement to the act comes from a third party; and (iii) where the complainant is overcome, voluntarily or not, by the effect of alcohol or drugs; and • to add that, in determining whether there was a reasonable belief in consent, the jury should take account of a failure to take any steps to ascertain whether the complainant consented."

Those proposed amendments were published in 2019, and it is now 2022. It is deeply disturbing to think that a failure to protest or resist when subject to sexual abuse could be considered as a form of consent. The new criminal offences that are set out in clause 1 should be based on consent, given that they are sexual offences. I urge the Minister and her Department to work on the reform of the wider issue. Again, I acknowledge the complex nature of that work. Nevertheless, we should be much closer to implementing the changes proposed by Gillen than we currently appear to be. I would welcome some clarity or an update from the Minister on that.

I move to cyber-flashing. My understanding is that the Westminster Government will legislate on that issue soon, meaning that that will become law in England and Wales. Scotland made causing a person to look at a sexual image without their consent an offence in 2010. We need to take the opportunity that the Bill provides to legislate on that. Again, I understand and acknowledge the comments that the Minister made at Committee last Thursday. I am a bit uncomfortable with pinning all our hopes on Further Consideration Stage, but I look forward to the Committee meeting this week and to some intensive engagement with officials to ensure that a more robust amendment is drafted and tabled as soon as possible.

The Committee heard from a wide range of organisations, as the Chair said, on the Minister's amendment to broaden the scope of abuse of trust in the Sexual Offences Order 2008. There is an extensive list of those issues in the Committee report, and I do not intend to repeat them. However, I reiterate the concerns of the NSPCC, Barnardo's and the Children's Commissioner with regard to the limited scope of the amendment, which will capture only sporting and religious settings.

Those organisations made clear that that does not go far enough to protect all children. Strangely, the Department seems to have clearly accepted this assessment, which is why the proposed amendment includes a regulation-making power that will allow it to include other settings in the future. The question is: why would we not seek to provide that certainty and extend protection now?

Photo of Naomi Long Naomi Long Alliance

It is not strange at all. The reason is clear. It was set out for the Committee, and in my speech earlier. In doing this, we have based it on the evidence currently available. The two areas where there is sufficient evidence to demonstrate that there is a need for us to intervene are in faith-based and sports-based activities.

At this point, there is not sufficient evidence that there are other areas where we would wish to introduce this provision. However, in order to prevent any progress on that being delayed by waiting for another suitable primary legislative vehicle, we have said that there is an order-making power that will allow us to amend the law if further evidence becomes available of other sectors that need to be included, and that will be by positive affirmation in the Assembly.

The reasons for it are rational: the evidence base is simply not there to underpin any further additions at this time. We have never as a Department ruled out the potential that they will be there in the future.

Photo of Rachel Woods Rachel Woods Green

I thank the Minister for her intervention. I have said before in Committee that we do not need to wait for evidence of sexual exploitation of children to occur in other settings where there is an abuse of trust. That is my position on that.

The NSPCC's position is also clear. It wants to see children protected no matter what the setting or activity, and it argues that the protection should be based on risk of harm. It stated that, if the proposed amendment were made, adults working in non-statutory settings in a position of trust in areas other than religion and sport would remain outside the law. The Children's Commissioner stated that she had significant concerns about the position of the Department that further evidence must be provided that children had been sexually abused by adults in positions of trust outside sporting and religious settings before further amendments could be considered.

Barnardo's stated:

"Children deserve protection in the law now no matter what the setting, and should not have to wait until an incident of abuse in an additional setting is exposed to receive that protection."

Photo of Naomi Long Naomi Long Alliance

The additional evidence that would be required is not that abuse had taken place. The evidence would be that there is risk, so it is that evidence of risk. These are settings in which we know that there is considerable risk, so we are acting to mitigate it. We are balancing that against the article 8 rights of the young people themselves. I will expand on that in my responses, but they have a right at 16 and 17 years of age to make choices about having sexual relationships. What we do not want to do is, essentially, to raise the age of consent by stealth by making it so prohibitive for anybody over the age of 18 to have sex with somebody at the age of 16 or 17 that we effectively make 18 the age of consent.

That is the balance that we have to strike, but we are not saying that there has to be evidence of actual offences. We are not waiting until somebody is harmed but are saying that there has to be evidence of that risk.

Photo of Rachel Woods Rachel Woods Green

I thank the Minister for her intervention. I appreciate that this discussion and debate have been going on for a number of months, certainly in Committee. I accept that children and young people have article 8 rights. They have the right to make choices, and I do not want to raise the age of consent, but the point that I will consistently make is that this is not about raising the age of consent. This is about positions of trust in that type of relationship, so I do not accept that a comprehensive framing of abuse of trust in law will lead to healthy relationships between young people being criminalised. I do not accept that it will be challenged under article 8 or that it represents a raising of the minimum age of consent. We are talking about the sexual exploitation of children.

The offences in articles 23, 24, 25 and 26 of the Sexual Offences Order 2008 that concern the abuse of trust still require evidence. They still require police investigation. They still require a case file to be referred to the PPS and a decision to prosecute by the PPS, and the onus is on the prosecution to prove the alleged perpetrator's guilt in the courts. Therefore, I find some of what the Department said about the unintended consequences of widening the scope to be unhelpful, and I think that we should be listening much more closely to the children's sector on this and reflecting its concerns in changes to the proposed amendment.

There are other possible ways to strengthen the new clause. I would absolutely support a statutory review mechanism being built into it, alongside the power to expand through regulations, and that could be brought forward at Further Consideration Stage. Ultimately, however, I want all children to be protected, no matter what the setting or activity is, when there is someone in a position of trust there. The Minister should put firm proposals to the Committee for us to consider and scrutinise.

I will move on to the amendment on threatening to disclose images, which is amendment No 5. I fully support the Minister's amendment to introduce an offence of threatening to disclose private sexual photographs or films, and I absolutely agree with the many organisations that raised issues with the language that is often used to describe that kind of behaviour and the fact that we should now talk about "image-based sexual abuse", which, indeed, has many forms. As highlighted by the Human Rights Commission, image-based sexual abuse should, due to its disproportionate impact on women and girls, be recognised as a form of gender-based violence, and amendment No 5 will strengthen the offence that already exists in law around disclosing private sexual images. I thank the Minister and her Department for including that in the Bill.

I will move on to amendment No 6. The legislative changes set out in clause 3 are long overdue. It is beyond belief that the current legal position, which is reflected in the 2008 Order, refers to "child prostitution" and child porn, which could be interpreted to imply that children are responsible for or willing participants in their abuse. That language was scrapped in England and Wales some time ago, as noted in the Bill's explanatory and financial memorandum (EFM) and in the Marshall report, which was published in 2014 and recommended that the same changes be made here. Unfortunately, it, too, has been stalled and disrupted by the constant dysfunction of the Executive system here and the parties that have governed for the last many years. Yes, we are talking about language used in our laws, but it is not simply a question of semantics. I agreed wholeheartedly with many representations received by the Committee that called for changes in terminology to be applied consistently in all communications and documentation in order to drive the cultural shift that is needed in the way that we talk about and address child sexual exploitation and abuse. The Department advised that it would be wary of changing any language that may impact legal certainty in that regard, so I ask the Minister, if she can, to point out what the barriers are and how we can get to a point where the language that we use around this, especially from a legal perspective, clearly captures harm and leaves no room for euphemism, ambiguity or downplaying the severity of these crimes.

The Committee heard loud and clear the calls from children's sector organisations to include and capture other forms of inducements when defining payment in child sexual exploitation cases, and I understand that concerns were raised about the potential for clarification regarding other inducements, which may, in their words, have unintentional consequences. I believe, however, that the Committee's approach here is the correct one, and the amendment is carefully crafted to provide a simple clarification that the interpretation of payment should not be limited solely to money.

Amendment No 11 introduces guidance on Part 1. Mr Deputy Speaker, I am sure that you and all other Members of the House will be glad that I do not intend to repeat previous speeches — there have been many — on the importance of guidance when we create new criminal offences, and I am glad that the Committee shared my views on the need for the new clause relating to guidance on Part 1. As with other Bills that we have considered on domestic abuse and protection from stalking, guidance will help to ensure the effective implementation of the legislation. It is not just for the benefit of the criminal justice system and the operationalisation of the new offences that we need guidance; it is to help those in the voluntary sector and education settings and to boost overall public awareness of new criminal offences. I recognise the crucial work that the Department will do through its task and finish group with all partners, and I do not believe that the new guidance clause will take anything away from that; if anything, it will enhance that work. The key point is that there will be a duty on the Department to ensure that the guidance on Part 1 includes information for use in training and for monitoring the operation of the law.

As legislators, we need to satisfy ourselves that the laws that we pass will be subject to adequate post-legislative scrutiny, issues will be identified quickly and solutions will be developed. The new clause will help to facilitate that process. It will also encourage more openness and transparency in the work of putting new laws into practice, support the public awareness and cultural shifts that we need and help us to see clearly how things are working out so that we can review them effectively, strengthen certain provisions or close potential loopholes in the future.

On the rough sex defence and amendment No 18, I very much welcome the Minister's amendment to codify the case law since R v Brown. However, I am disappointed that we have not explored the introduction of a sexual homicide offence in more detail, as was suggested by the Women's Policy Group and others and raised at Second Stage. Victim Support was of the view that placing R v Brown in statute may not in and of itself resolve the problem of a claim of rough sex gone wrong being raised in murder cases. Obviously, it is a serious and complex issue that involves the balancing of rights, and, as explained, it is not possible to preclude defendants from raising an assertion in evidence that the injured party consented to the behaviour that led to the charge brought again them. It is an ECHR matter of a fair trial that should not be interfered with. In such cases, it is and must remain a matter for the courts to determine whether consent was present and, if so, whether any mitigation in sentence is merited.

I urge the Department to explore and possibly consult on the creation of a new sexual homicide offence. That is something that we could have for Northern Ireland. It would help to deal with scenarios where the rough sex defence was employed in the prosecution, which then failed to move forward with murder charges. There are other possible solutions to strengthen the legal position, including introducing an aggravating factor at sentencing, giving the Director of Public Prosecutions a role in cases where the defence is used or introducing certain court rules where the defence of rough sex will be used. I am interested to hear the Minister's views on those and on what further work her Department will do in response to the evidence that the Committee received.

In concluding my remarks on the group 1 amendments, I thank the Minister and her Department for tabling the amendment to introduce the offence of non-fatal strangulation or asphyxiation. I am glad that that is happening and that there will be no more delay in legislating for it. The Committee looked at it first in 2020 during its deliberations on the Domestic Abuse and Civil Proceedings Bill. It is also closely linked to the so-called rough sex defence, which has been used as a defence in non-fatal strangulation assaults, even when victims have stated openly that they did not consent to those assaults. Taken together, the amendments should provide legal protections that are much more robust than those that currently exist.

In its 2019 'No excuse' report, the Criminal Justice Inspection recommended:

"The Department of Justice should review, with input from relevant stakeholders, how potential inadequacies in current legislation regarding the act of choking or strangulation by defendants could be addressed".

The Committee also heard from the PPS and looked at the new offence of strangulation and suffocation that was introduced in England and Wales in the Domestic Abuse Act 2021 that was passed at Westminster. It would have been completely shameful if we had not taken the opportunity to legislate on that now, especially when we are threatened with the uncertainty of another post-election hiatus. I sincerely hope that the amendment and the introduction of the new offence will provide the legal certainty and protection that victims and survivors need urgently.

I urge the next Justice Minister and whoever finds themselves sitting as a member of the Justice Committee in the next mandate to watch this space closely and to ensure that legislative change works in practice. We have much to do to extend protections to children and young people on child sexual exploitation, equal protection, youth justice, including the minimum age of criminal responsibility, and implementing the rest of the Gillen review.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

When the House debates criminal justice and the processes pertaining to it, we are dealing with one of the most solemn issues that we, as legislators, can deal with. We are dealing with the framework within which society can take that most extreme of steps: robbing a citizen of their liberty. Therefore, no one should approach the processes and procedures of criminal justice in a flippant or ill-considered manner.

Our criminal justice system has evolved over centuries. There was a time when an accused person was not allowed to cross-examine his or her accuser. There was a time when justice was administered in secret, behind closed doors. There are good reasons why, over the decades and centuries, we have moved away from those starting points. My anxiety is that some are tempted to move back to elements of those dark ages.

As our society and the wider Western society fine-tuned its attitude to criminal justice, there evolved, in due course, the European Convention on Human Rights. Some people like to quote it a lot. I will quote and major upon article 6 of the European Convention on Human Rights. It is not a script of accident or flippancy; it is a script that beds down — beds in — fundamental principles that are supposed to shape and ensconce the very things that, we say, we hold dear in respect of criminal justice. We, of course, are a signatory to the European Convention on Human Rights. What does it have to say? It says:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing".

It does not say, "everyone except those charged with a heinous sex crime". It says:

"everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but" — this is important —

"the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or" — mark these words —

"to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

I will read that clause again:

"to the extent strictly necessary in the opinion of the court".

It is not, "in the opinion of the Assembly or the legislator". It is:

"strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

What are we doing in the Bill? We are taking it on ourselves, in clause 15, to take away from the court the decision of what is in the interests of justice. We in the Assembly will decide that we will impose a blanket, mandatory ban on public justice in any case involving some of the specified criminal offences. That is what clause 15 says:

"Where a person is to be tried on indictment for a serious sexual offence, the court must give an exclusion direction before the beginning of the trial".

There will be no discretion; it "must".

Article 6 of the European Convention might well state:

"strictly necessary in the opinion of the court", but forget it, because we know better. Clause 15 contains the mandatory imposition of an exclusion direction. Do not worry about special circumstances. Do not worry about the interests of justice. Let us just make it the law that, in all cases, there shall be an exclusion order. I say this to the House, even to those Members who came in with their preordained ideas and read from their pre-prepared script: are you really comfortable with excluding from our courts the least shred of discretion on the issue of whether there should be an exclusion order?

There are Members of this House who have been accused in criminal courts. I am sure that, when they were, they were very jealous and precious of their right to a fair trial. Well, their rights were no less than the rights of any other individual, yet, today, some of them, according to their spokesperson, will vote for mandatory exclusion orders, with no thought given to the interests of justice and no thought given to the discretion of the court. They will vote just to slap on a mandatory exclusion order.

Photo of Naomi Long Naomi Long Alliance

Does the Member believe that it is in the interests of justice for victims of serious sexual assault to have to enter the courtroom, often a local courtroom, where their voice may be recognised, even with the measures that are in place, and where jigsaw identification can take place? Does the Member believe that it is in the interests of justice that people should be able to sit and hear those most intimate and harrowing details for nothing other than their personal entertainment?

Photo of Jim Allister Jim Allister Traditional Unionist Voice

If it is not in the interests of justice, that is for a court to decide. That is why my amendment states that, if a court decides that it is in the interests of justice, an exclusion order will flow from that decision. If the picture that the Minister paints is the correct picture in any given case, the provision therefore already exists. Indeed, it does not even need clause 15, because, as long ago as the Criminal Evidence (Northern Ireland) Order 1999, we have a provision whereby evidence by a court can be required to be given in private. It has been there for 23 years. It already exists in law, but we wish in this House, apparently, to supersede article 6 of the European Convention. It might be an uncomfortable reality that article 6 is, in fact, accused-specific, with the interests of the accused put front and centre. That might be an uncomfortable reality, but that is an essential adjunct to having a fair criminal justice system. That is why it is there.

Many courts have been called on to adjudicate on the issue of excluding the public from a court. The European Court of Human Rights has given many judgements on the matter. I will refer to only two of them. In the cases of B v the United Kingdom and P v the United Kingdom, the court said that it is a right to equality before the courts to have a fair trial. It said:

"The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Art 6(1), a fair hearing".

Secrecy and behind-closed-doors justice do not embed in the public mind, or contribute to, confidence in our courts.

Let me quote another case, which, maybe not surprisingly, was taken against Russia. We might think about that given what we are trying to do here. In the case of Chaushev and Others v Russia, the European Court of Human Rights criticised the Russian authorities, finding that they did not provide sufficient reasoning to demonstrate that the closure of a court was necessary. In other words, they did not demonstrate why it was necessary to do it behind closed doors. The House is inviting our courts to follow exactly the same course, whereby they will not have to demonstrate why it is necessary to lock and bolt the doors and why it is necessary to exclude public justice. Of course there will be circumstances, many of them turning on the needs of victims, in which it is right, proper and necessary to have evidence heard in a non-public setting. That provision already exists and will always be necessary, but it can never be necessary to wantonly make that, not on a case-by-case basis but universally, the mandatory requirement. That is the folly of clause 15: it seeks to make that which should be subjected in every case to a case-by-case decision subject to a blanket situation in which there is no discretion in the court.

Then, we have the ludicrous situation whereby the Minister wants to carry that forward into the appellate courts. I have spent many's the long and arduous day in our appellate courts in my lifetime. I can think of only one occasion in that time — it is such a rare eventuality — on which there was an application to hear fresh evidence. Appellate courts are not courts in which evidence is heard in public. Appellate courts are courts in which matters of law are argued and where the evidence previously given in the Crown Court, if it is a Crown Court appeal, will be sifted, assessed and evaluated, but there are virtually no circumstances in which individuals are called to the witness box to give evidence in an appellate court. It will be the dry, musty stuff of arguing what particular cases mean and arguing about legal authorities, yet the Minister comes to the House and says, "Ban those too. Shut the public out of that as well." That is way beyond where we need to be.

That causes me to ask this question: what is it that we are trying to hide? Maybe there are things to hide. The Gillen review, which so many in the House are so unquestioningly besotted with, has launched some staggering attacks on our traditional criminal justice values. Do Members realise that, in many serious criminal charges, your barrister, if you are the accused, is only allowed to ask questions of the accuser that the judge has approved? I can tell you that cross-examination is not something to be scripted; it is answer-led. Cross-examination goes where the answers lead it. That is how you sift the evidence. That is how you sort the wheat from the chaff. By asking the questions, whatever answer you get usually leads to another question, and, eventually, if the truth is not being told —

Photo of Naomi Long Naomi Long Alliance 3:30 pm, 15th February 2022

On a point of order, Mr Deputy Speaker. This relates to previous decisions that were taken by the House which have passed their Consideration Stage, and we are now rehashing a debate that we had some months ago rather than dealing with the substance of this particular amendment. Is there any way that you, Mr Deputy Speaker, can encourage the Member to move back to this Bill and these amendments?

Photo of Roy Beggs Roy Beggs UUP

Members are entitled to raise, in a cursory fashion, a range of issues, and I have allowed them to do so. However, I encourage the Member to deal with the amendments that are before us today.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I understand that the Minister might be embarrassed by the question, "Is there is something to hide in this process?". I am suggesting that there is something to hide in this process and why you might not want it to be in a public court. We have now reached the absurd position where in many of those criminal trials, your hands are tied behind your back in cross-examination. You can only ask the questions that the judge allows you to ask, and you cannot follow the evidence in the questioning. Maybe there is a reason why, therefore, some people would not like that to be subject to public examination. If that is the case, all the more shame for these propositions.

The fundamental point is this: any case may well deserve evidence to be taken in private, and that facility already exists. What is so fundamentally wrong is that we strip out that discretion and that case-by-case examination, and we impose a one-size-does-not-fit-all mandatory block on ever having a public hearing for those types of offences. In doing that, we do no service to the criminal justice system, which has been built up over so many years to command respect. Rather, we invite disrespect for that very system.

I say to the House that that is why, in a very modest amendment No 9, I am saying pause and insert into clause 15 that very simple article 6-compliant provision that, on a case-by-case basis the judge shall decide whether it is in the interests of justice or the public interest. If it is, he issues his exclusion order; if it is not, he does not issue it. Is that not how it should be, that if it is not in the interests of justice or the public interest, you should not be closing down the courts or hiding behind closed doors and it should be in public? Is that not the right test, rather than this blanket thing where we say, "Oh well, we will just take all these cases and have no regard to their individual circumstances", and have no case-by-case inspection, and say, "We, not the court, will decree that we are going to impose a mandatory blanket ban on public justice"? Do not do it.

Photo of Roy Beggs Roy Beggs UUP

I call the Minister of Justice, Naomi Long, to make her winding-up speech on the group 1 amendments.

Photo of Naomi Long Naomi Long Alliance

Since becoming Justice Minister, my goal has been to promote effective legislation in this mandate to protect the vulnerable in our community. The content of this Bill and the amendments that we have debated in this group will introduce valuable additional protections for the public by addressing important gaps in our current legislation and breaking new ground in several critical areas.

Importantly, the provisions contribute to the Executive's wider approach of protecting women and girls and recognising that, unfortunately, most victims tend to be female. However, and importantly, the provisions are constructed in a manner to make them gender-neutral, so any victim and any perpetrator is captured by the law, recognising that anyone can be a victim or a perpetrator of serious sexual offences. The amendments to the Bill that I have tabled today will make our community safer through a further strengthening of the existing law and by introducing new offences. The provisions will offer additional protections to victims, whose well-being remains at the heart of the criminal justice system.

I am encouraged by the support that has been shown by most Members today, and I would like to thank everyone who contributed to what was a useful and constructive debate on this group of amendments. In particular, I welcome the Chair of the Justice Committee's comments, along with those of Committee members, on how to handle the remaining issues, working with the Department on, for example, cyber-flashing, in order that that can be addressed by way of a Committee amendment at Further Consideration Stage.

I have to say that, in unusual circumstances, they have done all in their power to ensure that the Bill can proceed and cover new offences in what I recognise is a very rapidly changing environment, particularly with respect to the online environment. I concur with Sinéad Bradley, who pointed out that it is important that we are all committed to continuing progress in this space and that this is not simply a matter that will be dealt with and then we will move on.

I want to touch on a number of issues. One of them is the Committee's proposal to further widen abuse of trust provisions in the Bill. I want to respond to the Committee Chair's request for me to set out the serious concerns that I expressed to the Committee in writing in relation to its proposal to seek to further widen the abuse of positions of trust provisions. They were also touched on by Rachel Woods. I covered those concerns as part of my earlier remarks on my amendment No 4, but I want to restate the main issues that I see with the proposal.

The Committee's proposal is to extend the scope of my amendment of the abuse of position of trust to offences beyond the area of sport and religion, as defined in the provisions. I am of course conscious that predatory behaviour can occur in any environment where an adult has significant influence or power over a young person in their care. However, as I said earlier, these offences were never intended to cover all situations where an adult might have contact with, or a supervisory role over, under-18s. They were created to protect young people in particular situations where there is some element of dependency on an adult, which is often combined with an element of vulnerability on the part of the young person. They are intended to capture those relationships where there is a significant imbalance in power between the adult and the child and where there is scope for that position of trust to be abused.

I stress how crucial it is to ensure that, in strengthening the law, we strike the right balance in proportionality. We must ensure that we can protect our vulnerable young people from sexual exploitation whilst at the same time safeguarding a young person's right and ability to engage in legal, consensual sexual activity in a relationship. My amendment, as it stands, achieves that balance. The scope of the provisions that I propose was taken as a result of my Department's review, consultation and engagement on the issues involved and following an examination of the experience of other jurisdictions. Their development is based on evidence presented to date and the particular concerns and risks identified by stakeholders. As I have already highlighted, this has been strongest in the areas of sport and religion, where those in a position of trust are particularly influential over a young person's development. For example, sports coaches have unique opportunities for physical contact and can hold major influence over a young person's career and future development. Similarly, those who hold positions of responsibility in religion have significant influence over a young person's spiritual and religious development, often against a background of emotional vulnerability or immaturity. In both situations, individuals can command very high levels of trust, influence, power and authority over young people who look up to them as figures who are well-established and respected by the wider community.

No equivalent evidence has emerged to identify wider areas of concern where further legislative intervention is justified or appropriate at this point. I therefore have grave concerns about widening the scope of the provisions beyond what I propose, in advance of sufficient robust evidence being secured to warrant that further extension. Widening the provision further, as the Committee may propose, would have significant consequences that I wish to avoid. Specifically, widening the offences' scope could well attract legal challenge as to the rights of an affected individual under article 8 of the ECHR. Article 8 protects the right to family and private life. The abuse of position of trust provisions would engage article 8 as they criminalise conduct in the prescribed circumstances where previously such conduct between consenting individuals would have been lawful. Article 8 is a qualified right of privacy that includes protection for every individual's private sexual life, including the private sexual life of a young person aged 16 or 17 in Northern Ireland and with an individual who is over the age of consent. Measures that interfere with those rights must satisfy the specific exemptions to article 8 and must be:

"necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The extension of the abuse of position of trust offences to sport and religious settings has been strongly supported by evidence of a need for legal intervention, which is important in ensuring the legal competence of the provisions. Article 8 engagement would be more limited in the narrower extension that I propose than in a more broadly based approach, particularly where similar evidence has not been brought forward to support such an approach. If the abuse of position of trust offences were extended to all adults, that would seriously affect a young person's right to engage in legal sexual activity. That would have an obvious consequential impact on the proportionality of article 8 engagement.

A wider approach would also be open to potentially successful legal challenge. The concern is based on legal advice and not on idle speculation. A proposed widening of the offences' scope without due process could also be considered as increasing the age of sexual consent by stealth. It also runs the risk of over-criminalising young people, who could be considered to be breaking the law if, for example, a person aged 18 had a sexual relationship with a person aged 16 or 17. Those with innocent intention who are enjoying a healthy relationship should not be criminalised inappropriately.

A widening of the scope of the offences also has the potential to dilute the effect that they are trying to achieve. It is important that the law is strong in its intent, and limiting the extension of the abuse of position of trust offences to the categories in my amendment will help to achieve that. It will also ensure that further protection is focused on areas where a need for legal intervention has been identified rather than casting a wider net.

I hope that Members are provided with some reassurance that the door on this policy remains open with the inclusion of a delegated power in my proposed provision. That will enable the inclusion of further areas at a future stage and without the need to await a primary legislative vehicle, should evidence be provided that it warrants further legal intervention. I trust that that is helpful to the Committee in its continuing consideration of the proposals to further reform my provisions and will encourage Committee members to agree that no additional amendment is needed at this time.

I turn to the other issues raised by the Committee Chair.

[Pause.]

Apologies, Mr Speaker, I want to turn to notes that I have on my phone.

The Chair and, indeed, the Member for North Down Miss Woods raised a number of issues on the amendments to clause 1 that will not be moved. They chose to explore those issues before the House in advance of Further Consideration Stage. The amendments will not be moved today, and I welcome that.

The intended amendments sought to address concerns expressed by Committee members that the proposed provisions in clause 1 may not adequately capture offenders who take an upskirt or downblouse image and claim that it is a joke or prank. To be absolutely clear: taking such an image is never funny. It is never acceptable. It is not banter. It is an unacceptable invasion of an individual's privacy. The impact of that type of behaviour on victims can be devastating. I therefore understand and sympathise with the Committee's wish to plug what its members see as a gap in the proposed provision. In that context, particular reference was made in written and oral evidence to the Committee to the relatively recent case of upskirting in Enniskillen. In the absence of a specific offence of upskirting, that case was prosecuted under the common law offence of outraging public decency. The predominant view that emerged in Committee sessions seemed to be that that case, in which the defence put forward that the act was done as a schoolboy prank, would not have been caught by the proposed provision. The judgement in that case was published, however, and it is clear from the judgement that the case would have been caught by the provisions in the Bill. If Members have any doubts, they may wish to read the youth court panel's conclusions, which state:

"The acts committed by the defendant could not have had any innocuous purpose".

That judgement underlines and reinforces the evidence that the PPS gave to the Committee that simply because a defence is put forward that does not mean that it will be accepted when making a prosecutorial decision.

The PPS and the PSNI, in their evidence to the Committee, made it clear that proving intent is an integral part of any criminal offence, and, indeed, we have had lengthy debates — in Latin, at times — about the need to do so. However, the full individual circumstances of each case will be used to evidence intent in those cases rather than a person's defence, which may be to assert that the behaviour was merely a prank. The Committee's amendment, which seeks to close that perceived gap by introducing a test in the motivation requirements that:

"a reasonable person would consider the action likely to cause ... humiliation, alarm or distress", is similar to the test included in the Protection from Stalking Bill. That would capture issues that were not intended to be covered by this law, as I explained to the Committee at length. The provisions in the Protection from Stalking Bill were drafted to address a particular kind of insidious, abusive or threatening behaviour that is extremely diverse in nature and is particularly difficult to specify in legislation, and hence there was a need for the catch-all provision referring to the "reasonable person" and to cast the net as widely as possible to capture acts that may conclude with coercive control and stalking having taken place. The offences that we are dealing with today, however, are well specified. There is therefore no requirement to cast the net more widely.

There has to be some concern that the Committee's proposal to include a reasonable person test in the clause by way of an amendment, as it was, does not represent a minor change; it completely transforms the offence. The suitability of the reasonable person test to stalking offences does not mean that it transposes to these offences. The behaviour to be captured in that Bill is in stark contrast to the behaviour being captured in these offences, which are, by definition, much more narrowly specified.

My main concern has been that these offences do not lead to over-criminalisation, whereby those who are foolish and perhaps act with disregard to their own and others' common sense or those who behave in what they believe to be a mutually acceptable way end up being criminalised. That is a high risk. While I much appreciate the Committee's careful scrutiny of the provisions and its wish to see legislation that is as wide-reaching as possible, it is important that, as we work together before Further Consideration Stage, we avoid introducing anything that would lead to over-criminalisation.

The Committee Chair also referenced the intention to table an amendment that proposes the introduction of a new offence of cyber-flashing, which is a form of offending behaviour that is, unfortunately, becoming more prevalent. Unlike with most intimate abuse offending, the victim is the recipient rather than the subject of the image. The images can make victims feel frightened, violated and vulnerable. I very much welcome the Committee's focus on the issue and therefore have no objection in principle to an amendment to provide for the offence of cyber-flashing.

The amendment that the Committee tabled but did not move included the same reasonable person test. I thank the Committee for not moving that amendment. I wish to work with the Committee to find a form of words for an amendment and for the Committee to table that amendment, which would allow us to include cyber-flashing without endangering the substance of the Bill.

I will move on to comments from other Members, if I may. I turn to amendment No 9 to clause 15, which was tabled by Mr Allister. I completely acknowledge the careful balance that is required when making change in this space. The Member's amendment proposes to amend clause 15 to provide that an exclusion direction would be made at the discretion of the court where the court considers that:

"it is in the public interest or the interests of justice" to do so. As Sinéad Ennis, Paula Bradshaw and other Members rightly identified in their contributions, however, that would mean that, in practice, decisions about whether the public are to be excluded from the court would be decided on a case-by-case basis, as is already the case. The aim of clause 15 is to provide certainty for the victim of a serious sexual offence that, when the case comes to court, they will not have to give evidence about intimate and harrowing details in front of a full public gallery.

The Member's amendment would remove that certainty. The police and the Public Prosecution Service would be unable to reassure victims that, if they decide to proceed with the case, the public will be excluded from the court.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party 3:45 pm, 15th February 2022

I thank the Minister for giving way. Does she agree that a court could make an assessment only if a case came forward in the first place? Victims who do not feel empowered and whose voices are silent will never feel empowered unless that certainty is put in place.

Photo of Naomi Long Naomi Long Alliance

I agree with the Member. Mr Allister suggested that clause 15 is to secure secrecy and that the courts have something to hide in that regard. It is not about secrecy. Let me be clear: it does not exclude the press or reporters; nor does it extend to preventing the judge from permitting all of those who, the judge feels, are required to be there for the passage of justice. The current —.

Photo of Naomi Long Naomi Long Alliance

I will in a moment.

The ability of the court to exclude the public where it is in the interests of justice to do so is already provided for. The review found, however, that it is rarely used. That illustrates the need to provide certainty by placing a duty on the court to give an exclusion direction. The case-by-case approach still applies: the judge can make a judgment to permit others to enter the public gallery where he or she believes that it is important, in the interests of justice, to do so.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The Minister says that the power exists but has not been much used: maybe that speaks to the fact that it is not much needed in such cases. The Minister wants to jump to the conclusion of saying, "We dispense with discretion; we just make a mandatory order". She is, with respect, incorrect when she says that the judge can admit anyone whom he wants. The judge can admit only the people listed in new article 27A(2)(a) to (f). It is not open; it is an absolute exclusion order against open justice. That is what it is in every case, even where it is not needed. The balance is wrong.

Photo of Naomi Long Naomi Long Alliance

I disagree with the Member. First, I have not jumped to a conclusion; extensive research has been done. There is an extensive evidence base. The power not being used in court is not because it would not be welcomed by individuals who have access to other special measures in some of those cases; neither is it because it does no harm when it is not used. In fact, we know, because the evidence is there, that not using it creates a barrier. The Committee has seen that evidence. It creates a barrier to people pursuing a case against their abuser. In that case, the evidence is clear. This is not about a Minister simply jumping to conclusions; it is about a study of the evidence. Unfortunately, the opportunities to exclude are rarely used, not because there is no need; they are rarely deployed in a courtroom setting because of the underpinning legislation, which rightly suggests that our courtrooms should be open. It is right that, in the majority of cases, they should be, but these are exceptional cases, and that is the reason for the amendment.

Photo of Naomi Long Naomi Long Alliance

I will move on.

The certainty and consistency provided by clause 15 are fundamental to the protection that it offers. Under the European Convention on Human Rights, everyone is entitled to a fair and public hearing. It is right to ask whether the amendments are compliant. They are compliant: under article 6 of the ECHR, the press and the public can be excluded from the court in certain circumstances. We have prescribed those circumstances. The International Covenant on Civil and Political Rights provides that the public can be excluded in exceptional circumstances. Sir John Gillen stated in his report that he was satisfied that the circumstances of deterrence that currently deter so many complainants from taking forward cases of this nature are such that they represent exceptional circumstances. Under our provisions, the press continue to be admitted to hearings, and the public will be able to hear the announcement of decisions. There is no barrier to people being able to know that justice has been done or to observe how justice has been done, other than that they will not be in the public gallery when people are giving what is incredibly difficult and harrowing evidence to the court.

I will also echo the comments of Sinéad Bradley, if I may, on the need to protect young people from sexual abuse and exploitation and how that need is inextricably linked to providing young people with factual, non-judgemental, age-appropriate relationships and sexuality education. Sadly, it is not within my gift to deliver that, but I will continue to press to see change in that space, because young people cannot protect themselves against inappropriate behaviour if no definition of appropriate behaviour exists.

(Mr Principal Deputy Speaker [Mr Stalford] in the Chair)

I also agree and acknowledge that the Bill was pared back from its original format as a miscellaneous provisions Bill. However, I believe that what we have here, which amounts to 70% of the original Bill, is a significant and comprehensive addition to the protections that are available to victims of sexual offences, including children, and that it will provide them with the confidence to report such abuse and proceed with prosecutions. The other matters that were excluded from the Bill are ones that the Committee will, no doubt, be able to return to in the new mandate.

Paul Frew said in his contribution that he was concerned that those amendments had not been included in the original Bill. Of course, it was always the Department's intention to bring forward those amendments. However, in order that we could avoid running out of time in this mandate, the Committee has been very helpful in working with us by allowing us to stagger the information that was sent to the Committee. With respect to his comments on the positive influence that sporting figures and, indeed, religious figures can have, we do actually utilise that in the justice system, as he suggested we should, whether it be Carl Frampton or Paddy Barnes, who presented certificates to women and young men who undertook boxing courses in Hydebank Wood, or Jonathan Rea, who visited Hydebank recently to discuss road and bike safety. We recognise that such figures can inspire change in those who are in our care, raising aspirations and giving hope. However, that influence, when it is in the hands of someone with malign intent, can also be powerful, so it is right that a young adult who may be particularly vulnerable to coercion from such a person ought to be protected.

Dolores Kelly raised extraterritorial jurisdiction. I reassure her that that is already included in the Bill for sexual offences and all of the 2008 Order. Extraterritorial jurisdiction is also included for the so-called rough sex defence and non-fatal strangulation. However, if a foreign national who is not normally resident in Northern Ireland or the UK more widely were to commit such an offence against an individual who was resident in Northern Ireland, that would be brought by the local authorities of the international jurisdiction concerned. That would be completed via our existing and continuing relationships with Europol and Interpol, so we would be covered.

Finally, with regard to the remaining comments from Miss Rachel Woods, I wish to make just two short comments before drawing my remarks on the group to a close. On payment, it should be noted that payment is already interpreted by the courts to include non-monetary payment, so whilst I have no objection to the amendment, it adds nothing to the Bill, because the courts will already take payment in kind, services and other things as payment. Payment does not have to be monetary. That is the interpretation as it stands in the courts.

With respect to language and the evolution of language around issues such as child pornography, I very much share her concerns. The redefining of language is a continuing process. It will continue to evolve in the Department and the justice system over time. I hope that Members can continue to show leadership around the careful use of such language in order that we can show leadership in where it should evolve.

That concludes my remarks on this group of amendments. I look forward to the debate on the amendments —

Photo of Naomi Long Naomi Long Alliance

I will indeed.

Photo of Mervyn Storey Mervyn Storey DUP

— just for clarity? Earlier, the Minister made reference to the amendment about payment. Can she clarify — maybe we should clarify this — that that is not about us seeking to amend the 2015 Act; it relates to the Bill and is not a reference to the 2015 Act. That is clear from the Committee's deliberations on it. It is very specific. With regard to the first amendments, which we did not move, will the Minister — I suspect that this will be the case — take into account the extensive correspondence that we have now received from Professor Clare McGlynn on those issues? We will share that with the Minister because there are some points contained in it that need to be addressed.

Photo of Naomi Long Naomi Long Alliance 4:00 pm, 15th February 2022

I indicated to the Committee when we met last week that, first, we are open to looking to see whether, before Further Consideration Stage, we can agree a form of words that does no harm to the Bill and that will give the Committee the reassurance that it seeks. We undertook to do that in response to a query from Mr Weir.

On the fallback position if that is not possible, I have said that I will task my officials with looking at the wording to provide the kind of reasonable person test or additional threshold that the Committee sought to include but that would not do harm to the Bill. We could then take that forward in any new mandate, and do the research and evidence gathering. We are essentially being asked to introduce what is a novel idea into the Bill at a very late stage. That comes with a degree of risk. We should avoid doing so without being fully cognisant of the unintended consequences. The Committee largely agreed with that. If the Committee has additional correspondence and it wishes to share that with my officials in the course of our discussions, I am happy to try to bottom that out and get to a point where we can bring back a suitable amendment.

On amendment No 6 and the definition of payment for sexual services, which is in clause 3, my understanding — I am happy to take an intervention from the Member — was that the amendment was intended to amend new article 41(5) of the Sexual Offences (Northern Ireland) Order 2008, as provided for in Part 1 of schedule 2 to the Bill and as referenced in clause 3. The amendment was, therefore, intended to make it clear that payment for the sexual services of a child may be something other than financial. The amendment, as tabled, is incorrectly drafted and, instead, amends the definition of payment in article 64A of the 2008 Order, which provides for the criminalisation of paying for sex, as introduced by Lord Morrow.

I do not support amendment No 6, as it stands, on the grounds that it is incorrectly drafted. I understand from what the Chairman has just said that it does not fulfil the requirements. However, at Further Consideration Stage, a redrafted, accurate amendment could be tabled to take care of that particular issue. I am happy to support the Committee in taking that forward, though, as I have said, it is already taken as read by the courts that payment does not need to be monetary. I hope that that provides the reassurance that the Committee and Chairman have sought.

I look forward to being able to come back to debate the amendments in group 2. I hope that we will be able to make significant progress on the Bill this afternoon.

Amendment agreed to.

New clause ordered to stand part of the Bill.

New Clause

Amendment No 5 made:

After clause 2 insert—

<BR/>

Private sexual images: threatening to disclose


 


2B.—(1) The Justice Act (Northern Ireland) 2016 is amended as follows.


(2) In section 51 (disclosing private sexual photographs and films with intent to cause distress)—


(a) for subsection (1) substitute—


‘(1) A person commits an offence if—


(a) the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (‘the relevant individual’) appears,


(b) by so doing, the person intends to cause distress to that individual, and


(c) the disclosure is, or would be, made without the consent of that individual.”,


(b) in subsection (2)—


(i) after ‘disclose’ insert ‘, or threaten to disclose,’


(ii) for ‘the individual mentioned in subsection (1)(a) and (b)’ substitute ‘the relevant individual’,


(c) in subsection (4), after ‘disclosure’ insert ‘, or threat to disclose,’


(d) in subsection (5), in each place, for ‘the individual mentioned in subsection (1)(a) and (b)’ substitute ‘the relevant individual’,


(e) after subsection (7) insert—


‘(7A) Where a person is charged with an offence under this section of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove—


(a) that the photograph or film referred to in the threat exists, or


(b) if it does exist, that it is in fact a private sexual photograph or film.’,


(f) for subsection (8) substitute—


(8) A person charged with an offence under this section is not to be taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat.’


(3) In section 53 (meaning of ‘private’ and ‘sexual’), in subsection (5), for ‘the person mentioned in section 51(1)(a) and (b)’ substitute ‘the relevant individual (within the meaning of section 51)’.


(4) In Schedule 4 (private sexual photographs etc: providers of information society services)—


(a) in paragraph 3(1), after ‘sub-paragraph (2)’ insert ‘, (2A)’,


(b) in paragraph 3(2), after ‘if’ insert ‘, in the case of information which consists of or includes a private sexual photograph or film,’,


(c) after paragraph 3(2) insert—


‘(2A) This sub-paragraph is satisfied if, in the case of information which consists of or includes a threat to disclose a private sexual photograph or film, the service provider had no actual knowledge when the information was provided—


(a) that it consisted of or included a threat to disclose a private sexual photograph or film in which another individual appears,


(b) that the threat was made with the intention of causing distress to that individual, or


(c) that the disclosure would be made without the consent of that individual.’,


(d) in paragraph 4(2), for ‘section 51’ substitute ‘section 52’,


(e) for paragraph 4(3) substitute—


‘(3) ‘Information society service’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request).’” — [Mrs Long (The Minister of Justice).]

Clause 3 (Miscellaneous amendments as to sexual offences)

Amendment No 6 made:

In page 6, line 12, after “paying” insert—



“(which is not limited solely to the exchange of monies for this purpose)”. — [Mr Storey (The Chairperson of the Committee for Justice ).]

Clause 3, as amended, ordered to stand part of the Bill.

Clauses 4 to 6 ordered to stand part of the Bill.

Clause 7 (Special rules for providers of information society services)

Amendment No 7 made:

In page 10, leave out lines 16 to 26 and insert—



“‘information society service’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request);”. — [Mrs Long (The Minister of Justice).]

Amendment No 8 made:

In page 10, leave out lines 33 to 37. — [Mrs Long (The Minister of Justice).]

Clause 7, as amended, ordered to stand part of the Bill.

Clauses 8 to 14 ordered to stand part of the Bill.

Clause 15 (Serious sexual offences: exclusion of public from court)

Amendment No 9 proposed:

In page 16, line 10, after “court” insert—



“if satisfied that it is in the public interest or the interests of justice”. — [Mr Allister.]

Question put, That the amendment be made.

Some Members:

Aye.

Some Members:

No.

Photo of Christopher Stalford Christopher Stalford DUP

Before I put the Question again, I remind Members present that, if possible, it would be preferable to avoid a Division.

Question put a second time.

Photo of Christopher Stalford Christopher Stalford DUP

Before the Assembly divides, I remind Members that, as per Standing Order 112, the Assembly currently has proxy voting arrangements in place. Members who have authorised another Member to vote on their behalf are not entitled to vote in person and should not enter the Lobbies. I remind all Members of the requirement for social distancing while the Division takes place. I ask Members to ensure that they retain a gap of at least 2 metres between themselves and others when moving around in the Chamber or the Rotunda, and especially in the Lobbies. Please be patient at all times, observe the signage and follow the instructions of the Lobby Clerks.

The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 28; Noes 56

AYES

Mr Allister, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mrs Cameron, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Easton, Mrs Erskine, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Newton, Mr Poots, Mr Robinson, Mr Storey, Mr Weir, Mr Wells

Tellers for the Ayes: Mr Allister, Mr Weir

NOES

Dr Aiken, Mr Allen, Dr Archibald, Ms Armstrong, Ms Bailey, Mrs Barton, Mr Beattie, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Butler, Mr Catney, Mr Chambers, Mr Delargy, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Ferguson, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lyttle, Mr McAleer, Mr McCrossan, Mr McGlone, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Muir, Ms Á Murphy, Mr C Murphy, Mr Nesbitt, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Miss Reilly, Ms Rogan, Mr Sheehan, Ms Sheerin, Mr Stewart, Mr Swann, Miss Woods

Tellers for the Noes: Mr Blair, Mr Dickson

Question accordingly negatived.

Amendment No 10 made:

In page 19, line 20, at end insert—

<BR/>

Exclusion of public from appeal hearing


 


27E.—(1) Paragraph (2) applies where a hearing is to be held by the Court of Appeal of any one or more of the following—


(a) an application for leave to appeal against a conviction or sentence (or both) in respect of a serious sexual offence;


(b) an appeal against a conviction or sentence (or both) in respect of a serious sexual offence;


(c) an application for leave to refer a sentence in respect of a serious sexual offence to the Court of Appeal under section 36 of the Criminal Justice Act 1988 (reviews of sentencing);


(d) a reference under that section of a sentence in respect of a serious sexual offence;


(e) an application for leave to appeal under section 12 or 13A of the Criminal Appeal (Northern Ireland) Act 1980 (appeals against findings of not guilty on ground of insanity and unfitness to be tried) in respect of a serious sexual offence;


(f) an appeal under either of those sections in respect of a serious sexual offence.


(2) The court must give an exclusion direction before the beginning of the hearing (but this is subject to paragraph (4)).


(3) Paragraph (2) applies whether or not the hearing relates to other offences as well as a serious sexual offence.


(4) Paragraph (2) does not apply if the time at which the exclusion direction would fall to be given (in the absence of this paragraph) is not within the lifetime of the complainant.


(5) Where an exclusion direction is given under this Article in relation to a hearing, the direction—


(a) has effect from the beginning of the hearing, and


(b) subject to paragraph (7), continues to have effect until, in respect of each relevant application or appeal to which the hearing relates, either—


(i) a decision has been made on the application or appeal, or


(ii) the application or appeal has been abandoned.


(6) In paragraph (5) a ‘relevant application or appeal’ means any application, appeal or reference mentioned in paragraph (1).


(7) The exclusion direction does not have effect during any time when any of the following decisions is being pronounced by the court—


(a) a decision to grant or refuse leave to appeal;


(b) a decision on an appeal;


(c) a decision to grant or refuse leave to make a reference under section 36 of the Criminal Justice Act 1988;


(d) a decision on such a reference.


(8) In this Article—


‘complainant’ has the meaning given by Article 27A(7), reading the reference in Article 27A(7) to the trial as a reference to the hearing;


‘effect’ has the same meaning as in Article 27A (see Article 27A(7));


‘exclusion direction’ is to be read in accordance with Article 27F(1);


‘sentence’ has the same meaning as in Part 1 of the Criminal Appeal (Northern Ireland) Act 1980;


‘serious sexual offence’ has the same meaning as in Article 27A (see Article 27A(7)).


(9) A reference in this Article to a hearing is not to be taken to include any proceedings on an application for leave to appeal, or on an application for leave to refer a sentence, that are of a kind which (ignoring this Article) are not held in open court.


 


Exclusion from appeal hearings: further provision


 


27F.—(1) Subject to paragraph (5), in Article 27E and this Article “exclusion direction” has the meaning given by Article 27A(2).


(2) The following provisions apply in relation to exclusion directions given under Article 27E as they apply in relation to exclusion directions given under Article 27A—


(a) Article 27B(1) to (3), (5) and (6);


(b) Article 27C; and


(c) Article 27D(1) to (4).


(3) As well as being subject as mentioned in Article 27D(4), an exclusion direction given under Article 27E has effect subject to section 24 of the Criminal Appeal (Northern Ireland) Act 1980 (right of accused to be present at hearing of appeal and limitations on that right).


(4) Rules made under section 55 of the Judicature (Northern Ireland) Act 1978 may make provision about any matter mentioned in paragraph (4) of Article 27B or paragraph (5) of Article 27D (reading the references in those paragraphs to Article 27A(2)(c) and (d), Article 27B(6) and Article 27C(3) as references to those provisions as applied by this Article).


(5) In their application by virtue of this Article, Article 27A(2) and the provisions mentioned in paragraph (2)(a) to (c) are to be read as if—


(a) in the definition of ‘the complainant’ in Article 27A(7), the reference to the trial were a reference to the hearing, and


(b) in the definition of ‘persons directly involved in the proceedings’ in Article 27A(7), sub-paragraph (e) were omitted.” — [Mrs Long (The Minister of Justice).]

Clause 15, as amended, ordered to stand part of the Bill.

New Clause

Amendment No 11 made:

After clause 15 insert—



Guidance about Part 1


 


15A.—(1) The Department of Justice must issue guidance about—


(a) the effect of this Part, and


(b) such other matters as the Department considers appropriate as to criminal law and procedure relating to Part 1 in Northern Ireland.


(2) The guidance must include—


(a) information for use in training on the effect of this Part as it considers appropriate for its personnel, and


(b) the sort of information which it seeks to obtain from personnel for the purpose of the assessment by it of the operation of this Part.


(3) Personnel in subsection (2) being any public body that has functions within the criminal justice system in Northern Ireland which the Department of Justice considers appropriate.


(4) A person exercising public functions to whom guidance issued under this Part relates must have regard to it in the exercise of those functions.


(5) The Department of Justice must—


(a) keep any guidance issued under this Part under review, and


(b) revise any guidance issued under this Part if the Department considers revision to be necessary in light of review.


(6) The Department of Justice must publish any guidance issued or revised under this section.


(7) Nothing in this Part permits the Department of Justice to issue guidance to a court or tribunal.” — [Mr Storey (The Chairperson of the Committee for Justice ).]

New clause ordered to stand part of the Bill.

Clause 16 (Support for victims of trafficking etc)

Photo of Christopher Stalford Christopher Stalford DUP

We move to the second group of amendments for debate. With amendment No 12, it will be convenient to debate amendment Nos 13 to 17. In the group, amendment No 14 and amendment No 13 are mutually exclusive.

I call the Chair of the Committee for Justice, Mr Mervyn Storey, to move amendment No 12 and to address the other amendments in the group.

Photo of Mervyn Storey Mervyn Storey DUP

I beg to move amendment No 12:

In page 20, line 6, at end insert—

<BR/>

“(aa) in subsection (4) after ‘days’ insert ‘(or more based on need)’;’’.

The following amendments stood on the Marshalled List:

No 13: In page 20, line 6, at end insert—



“(ab) in subsection (9) leave out ‘such further period as the Department thinks necessary’ and insert ‘for 12 months (or less if not required)’:’’. — [Mr Storey (The Chairperson of the Committee for Justice ).]

No 14: In page 20, line 6, at end insert—



“(ab) in subsection (9) leave out from ‘may’ to ‘necessary’ and insert—


‘shall nevertheless ensure that necessary assistance and support continues to be provided to that person under this section for at least 12 months’”. — [Mr Storey.]

No 15: In page 20, line 6, at end insert—



“(ac) after subsection (9) insert—


‘(9A) In determining the assistance that is necessary under subsection (9) the Department must have regard to subsections (5) to (7).’”. — [Mr Storey.]

No 16: In page 20, line 12, at end insert—



“(4) In section 22 (Defence for slavery and trafficking victims in relation to certain offences)—


(a) in subsection (9)(a)(i) after ‘of a’ insert ‘Class A,’,


(b) In subsection (9)(a)(ii) after ‘of a’ insert ‘Class A or,’”. — [Mr Storey (The Chairperson of the Committee for Justice ).]

No 17: After clause 17 insert—



Protective measures for victims of slavery or trafficking


 


17A.—(1) The Department of Justice may by regulations, within 24 months of Royal Assent, make provision—


(a) enabling or requiring steps to be taken or measures to be imposed for protecting a person from slavery or trafficking,


(b) for the purpose of or in connection with such steps or measures for protecting a person from slavery or trafficking.


(2) Steps or measures which may be provided for in regulations under this section are not limited to notices or orders.


(3) The regulations may not be made unless a draft has been laid before and approved by a resolution of the Assembly.” — [Mr Storey (The Chairperson of the Committee for Justice ).]

Photo of Mervyn Storey Mervyn Storey DUP

There was widespread support for clauses 16 and 17. However, a number of organisations believed that the legislation provided an opportunity to go further to improve the support and protection provided to victims of trafficking and exploitation. The evidence received by the Committee highlighted the need for the statutory support and assistance provided to victims of trafficking and exploitation to be extended beyond what is available under the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which, when it was brought forward by my friend and colleague Lord Morrow, led the way in tackling those horrendous crimes and providing support to victims. A Member who spoke previously made reference to the change that that legislation has made and the benefit that it has brought about.

Proposals to provide additional support to people while in the national referral mechanism (NRM) process, which determines whether a person is a genuine victim of trafficking or slavery, following receipt of a positive conclusive decision and when appealing a negative NRM decision, were put forward. The Committee discussed them in depth during oral evidence sessions with organisations that work with and provide direct support to victims of trafficking and exploitation, including CARE NI and the Migration Justice Project organisations, which include the Law Centre NI, Belfast and Lisburn Women's Aid, Flourish NI and Migrant Help. We also discussed that with Department of Justice officials.

The organisations highlighted that a positive NRM conclusive grounds decision does not in itself give rise to a benefit entitlement or access to support with any degree of security from the point when someone is confirmed a victim. While the 2015 Act provides for support to be continued on a discretionary basis, under that power, support is currently being provided only to a limited number of victims and only as a short-term transition to mainstream services or repatriation. That lack of statutory support leaves some recognised survivors of human trafficking homeless, destitute and completely reliant on the charitable support that they receive. In those circumstances, they will be vulnerable to being re-trafficked and are unlikely to have the sense of stability and security that would encourage them to engage with the criminal justice agencies and assist in bringing traffickers to justice. Figures provided to the Committee suggested that the number of victims with a positive NRM outcome requiring support is likely to be small and would comprise those who are an EEA victim with pre-settled status or a non-EEA victim waiting for a decision on a concurrent asylum claim or other immigration application.

When the Committee discussed the issues with departmental officials, they confirmed that section 18 of the 2015 Act places a statutory duty on the Department to provide assistance and support to adults who are potential victims of human trafficking during a 45-day recovery and reflection period, pending the determination of their status as victims through the NRM process. It also provides for support to be continued on a discretionary basis following a positive conclusive grounds decision based on assessed need.

The officials advised that support is provided in excess of 45 days in 95% of all current cases. For cases going through the NRM process, support is typically provided for 150 days, but it can be provided in excess of that in some cases, largely due to the length of time that is taken for the Home Office competent authority to make reasonable grounds or conclusive grounds decisions in individual cases. The officials highlighted the fact that the Minister gave a clear commitment to progressing the work needed to increase support for trafficked victims, which will be a key element of the development of a longer-term strategy for human trafficking and modern slavery.

Victims of modern slavery and trafficking are victims of the most horrendous crimes. The Committee is concerned that, sadly, the number of victims is increasing but the number of convictions remains low. The Committee believes that there are strong arguments for ensuring that support be provided to the victims who need it, rather than providing it on a discretionary basis, pending not only the determination of their status through the NRM process but from the point at which they are confirmed to be a victim following a positive conclusive grounds decision. That would enhance their protection from re-trafficking and assist in their recovery and engagement with the criminal justice agencies to help to secure increased convictions.

Ensuring support is particularly important given the potential future pressures on the Department’s budget, which are very likely to result in difficult funding decisions being taken and discretionary areas of spend potentially being reduced or ceased. On that point, I thank the Minister for again taking the time to meet the Committee to discuss the particular concerns that have been raised about the Department's budget. It is clear that there are particular pressures. However, despite those, we need to ensure that we keep a very close focus on the victims of this abhorrent crime, which is, sadly, still prevalent in our society.

The Committee was also conscious of the motion that was unanimously supported by the Assembly in October 2020, which called for:

"consideration of further support for victims of trafficking beyond the end of the support provided under the National Referral Mechanism". — [Official Report (Hansard), 13 October 2020, p26, col 2].

The Committee, therefore, proposed amendment Nos 12 and 13 to provide statutory support for victims to cover them from the presentation stage to the NRM decision, based on need. From receipt of a positive NRM decision, statutory support would be provided for 12 months, or less if it were no longer required. The period of support following a positive NRM decision aims to provide the support required to aid a victim’s recovery and to assist them in moving forward while not providing a disincentive to move out of support.

I appreciate the Minister’s indication at the Committee meeting last Thursday that she would support the amendments. The Committee is also happy to work with the Minister and her officials to address any minor technical or drafting issues that may be required prior to Further Consideration Stage.

My colleagues in the DUP and I have proposed two separate amendments on the support for victims. My colleague Peter Weir will outline the rationale for those during the debate on this group of amendments.

Amendment No 16 deals with the extension of the statutory defence on exploitation. Section 22 of the 2015 Act provides a statutory defence for victims and survivors of human trafficking for certain offences. It gives effect to the principle of the non-punishment of trafficking victims. That is affirmed in international law and guidance and is aimed at ensuring that a victim of trafficking is not punished for unlawful acts committed as a consequence of trafficking. In Northern Ireland, the defence does not apply to an offence that, in the case of a person over the age of 21, is punishable on indictment with imprisonment for life or a term of at least five years, other than a defined list of offences, including drug-related offences for class B or C drugs and offences relating to false immigration documents.

Questions were raised in the evidence that was received by the Committee about whether the current statutory defence provides adequate protection for victims of emerging forms of criminal exploitation. It was highlighted that the legislative intent of the statutory defence in the 2015 Act was to ensure its availability for victims who were recovered from criminal exploitation relating to drug use. At that time, there were a number of cases of human trafficking for cannabis cultivation in Northern Ireland. More recently, however, there has been an increase in the number of victims who have been trafficked for heroin distribution. Heroin is a class A drug and not currently covered by the statutory defence. The Committee noted that the Department had commenced a review of the statutory defence and was gathering evidence and reviewing relevant judgements and research. The Committee, however, believes that the Bill provides an opportunity to ensure that the legislative intent of the 2015 Act in relation to the statutory defence for victims recovered from criminal exploitation relating to drug use is updated to reflect emerging forms of exploitation. The Committee agreed to table amendment No 16 to extend the statutory defence on exploitation to include class A drugs in order to provide adequate protection for victims who are trafficked for heroin distribution.

I move now to the last amendment in the group, amendment No 17, which deals with protective measures for victims of slavery or trafficking. Slavery and trafficking risk orders (STROs) are available in England and Wales but not in Northern Ireland. The independent Anti-Slavery Commissioner highlighted in her 2019-2020 report and, more recently, when she attended an event hosted by the Assembly's all-party group on modern slavery, slavery and trafficking risk orders as a means of protecting victims of modern slavery, and she recommended that consideration be given to implementing them in Northern Ireland. In October 2020, the Criminal Justice Inspection report also recommended that the Department of Justice, in consultation with the PSNI and the Public Prosecution Service, consider the experience in England and Wales. It recommended that, within one year of the publication of its report, they look at the need for STROs in Northern Ireland as a way to prevent modern slavery and human trafficking-related crimes and to support victims.

When asked about the current position, Department of Justice officials advised that preparations were being finalised for a public consultation early this year on the introduction of STROs in Northern Ireland, with the aim of identifying an appropriate legislative vehicle as soon as possible in the next mandate, depending on the outcome of the consultation. They clarified that the STROs had originally been consulted on in 2014 and that a decision was made at that time not to include them in the 2015 Act. They were subsequently introduced in England and Wales in 2015. Scotland's equivalent is the trafficking and exploitation risk order. The Department acknowledged that there was widespread support for their introduction in Northern Ireland from a range of non-governmental organisations and bodies involved in modern slavery and human trafficking issues.

The Committee noted examples of the beneficial use of STROs in England and Wales, the positive findings of the 2017 Home Office review of their effectiveness and the findings of the May 2019 independent review of the Modern Slavery Act 2015. The Committee believes that STROs would be a useful additional tool in Northern Ireland in tackling and disrupting human trafficking and modern slavery, and in assisting in the prevention of reoffending. The Committee is disappointed at the lack of progress by the Department in that area and wants work to be expedited to provide STROs when a defendant is convicted of a crime other than human trafficking but where there is a suspicion that trafficking may be involved; where there is a connection between human trafficking and the offending behaviour; and where people have not been convicted, including in situations where there is a need to protect future potential victims while modern slavery or human trafficking crimes are being investigated, particularly when those investigations are very long and drawn out. That would make our system similar to what is in place in England, Wales and Scotland.

The Committee therefore decided to table amendment No 17, which places a duty on the Department to bring forward by 2024 protective measures, such as STROs, for victims of slavery or trafficking. That approach provides the Department with the flexibility to take account of the findings of the consultation when shaping the provisions relating to STROs. It also ensures that they will be in place within a reasonable time frame and that any further long delays are avoided. I understand that the Minister is content with that amendment, and the Committee appreciates her support.

It would be remiss of us not to comment on the fact that STROs were being discussed in 2014, and we are now in 2022. Therefore, I think that the time has well passed for us to take positive, decisive action and to see their introduction in Northern Ireland.

The Committee has taken the opportunity through the Bill to bring forward additional legislative provision to improve the support and protection that are given to victims of human trafficking and modern slavery and to build on the 2015 Act. I look forward to the debate on the second group of amendments. Before I finish, I place on record the Committee's appreciation to all the organisations that provide vital support and assistance to victims of human trafficking, exploitation and modern slavery.

I conclude those comments as Chair of the Justice Committee, and, as I referred to, my colleague Peter Weir will expand on the amendments that have been tabled in our names as members of the DUP. I think that, as with all legislation, we can always run the risk of unintended consequences. There is a concern about the amendment where there is the use of the phrase "or less", and I think that there is an opportunity for the House to ensure that there are no unintended consequences. I will leave my comments there, and I look forward to my eloquent colleague Mr Weir elaborating on that before I move the amendments.

Photo of Jemma Dolan Jemma Dolan Sinn Féin

Figures that were released in August last year show that there has been a 750% increase in the numbers of suspected victims of human trafficking in the North over the last eight years. In 2012, there were 15 referrals to the national referral mechanism, which is the framework for identifying and supporting victims of human trafficking and modern slavery, and there were 128 referrals in 2020. Those figures may be influenced by other factors, such as an increased awareness of human trafficking and better methods of identifying and supporting victims. However, the upward trend is still extremely worrying. It shows that the scale of human trafficking and modern slavery in our society is huge, yet those figures likely represent only a fraction of those who suffer from the cruelty of this criminal exploitation. I am pleased to support Part 2 of the Bill, which improves support for victims of human trafficking and modern slavery and which will allow the human trafficking and slavery strategy to be published every three years instead of annually. That will allow us to put in place more effective long-term actions to address the scale of trafficking and exploitation.

Turning to the proposed amendments to the Bill, I will say that, when the Justice Committee heard evidence from a range of organisations on the Bill, concerns were raised that the Human Trafficking and Exploitation Act 2015 is too restrictive in the support that it offers to confirmed victims of trafficking. The legislation specifies a period of 45 days for the provision of support for confirmed victims, albeit it also provides the Department of Justice with a discretionary power to provide the support for a longer period if it thinks that that is necessary.

Amendment Nos 12 and 13 would remove the 45-day period specified and would instead ensure that the support be provided for up to 12 months, or fewer if it is not required. I appreciate the will of the Justice Committee to guarantee that support be provided for an appropriate length of time, and I believe that amendment Nos 12 and 13 do that by providing support for up to 12 months based on need.

Given that existing legislation provides the Department with the discretionary power to provide support for an unspecified period, which may be more or less than the 12 months, I am not convinced that the case has been made that amendment Nos 14 and 15 are necessary. I am concerned that amendment Nos 14 and 15 have not been sufficiently discussed, examined or tested and that we are totally unaware of the financial implications of such changes. Whilst I am sympathetic to the motivations behind the amendments, I fear that making legislation without having that crucial information will be bad practice and could have huge implications. Sinn Féin will, therefore, oppose amendment Nos 14 and 15.

At present, confirmed victims of human trafficking and slavery have a statutory defence in court in relation to certain offences that they carried out under their exploitation and because of their exploitation. That defence applies to class B and below drug offences but not to class A drug offences. Amendment No 16 will insert class A drug offences into the list of offences where victims are entitled to use that statutory defence.

That is an important protection, as we know that there are no limits to the things that trafficked and exploited victims are forced to carry out. Sinn Féin is happy to support that amendment.

Finally, Sinn Féin is also happy to support amendment No 17, which would place a statutory duty on the Department of Justice to bring forward protective measures for victims of slavery or trafficking within 24 months. It is anticipated that the measures will take the form of the important slavery and trafficking risk orders. I know that the Department will soon do a public consultation on STROs, and I look forward to my party engaging with that consultation to identify the best way forward in protecting victims.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party 4:45 pm, 15th February 2022

I will speak on behalf of the SDLP to the amendments in group 2, which focus on trafficking and exploitation.

Amendment No 12 seeks to move away from a set number of days and make support "based on need". We support that.

Amendment No 13 seeks to move away from the discretion that the Department has. Stakeholders made the point that that discretion has been most welcome and much needed. Unfortunately, because a large part of the support is discretionary, people who have been trafficked live in fear of the unknown. They live from week to week or month to month and are dependent on the goodwill of others. That is an unfair situation to place anybody in, given the trauma that they have just come through.

Amendment No 13 pins down in law a period of 12 months. We debated the timeline in Committee, but there was recognition that that period would take away a cliff edge and allow a person an adequate amount of time in which to rebuild their lives. It was not reasonable to expect anybody to live on the goodwill or discretion of the Department. The rationale and thinking behind the 12-month period in that amendment are sound.

The inclusion of the words:

"(or less if not required)" also has good grounds. We all, on the Committee for Justice in particular, recognise that, when resource is tight, it is a case of robbing Peter to pay Paul. It is difficult to look at situations and say, "We know we have finite access to resource." I hope that there will be plenty of situations in which support is not required. Unfortunately, I do not expect that, within a 12-month window, there will be many such situations.

I see what amendment No 14 is attempting to do, and I will reserve judgement until I have heard full clarity on the situation. My fear, however, is this: if we have limited access to resource and we put it into law that the Department is bound to support somebody who does not need it — if the outcome of a fair assessment is that the support is not required — is it fair that we then direct resource to somebody who does not need it, while, perhaps, somebody who desperately needs it sits on a much lesser package or level of support, if any at all? We have to be realistic. I genuinely fear that, as Mr Storey mentioned, the unintended consequences of amendment No 14 could become apparent. Whilst I am not unsympathetic to what it attempts to do, I am fearful that good intentions might result in wrong outcomes.

I say that having listened to the graphic explanation given by a Member of a photographic image. This is about people living in the most horrific of situations. I would like to think that we have a fair system that reaches each of those people. I can see how we could undo the good work of amendment No 13 by agreeing to amendment No 14, but I will wait to hear the Member's contribution on that. I would also welcome hearing from the Minister, when she speaks to it, whether she knows of any other unintended consequences that I have not been mindful of.

Amendment No 15 will underpin the determination for when help is required, and I will listen with interest to the case for it. Amendment No 16 looks to include class A drugs in clause 16, and the SDLP fully supports that.

Finally, amendment No 17 is proposed new clause 17A, which is titled "Protective measures for victims of slavery or trafficking". The new clause is, no doubt, the foundation stone that would allow for the STROs that have been discussed. Many stakeholders put forward compelling arguments for why STROs should be triggered. I have no doubt that amendment No 17 does that, but I would argue that, given the way in which it is drafted, it goes further. It allows for STROs and beyond and gives the Department discretion to implement any measures that it believes are necessary. It is not limited to notice orders. Quite rightly, it also includes this provision:

"The regulations may not be made unless a draft has been laid before and approved by a resolution of the Assembly."

That is good practice, but the proposed new clause is the critical foundation stone for building real support for the people whom we are desperately trying to reach. For that reason, we will support amendment No 17.

Photo of Robbie Butler Robbie Butler UUP

On behalf of the Ulster Unionist Party, I will speak to the second group of amendments, which deals with trafficking and exploitation. I pay tribute to the Minister, her Department and the Justice Committee for the collegiate manner in which they have dealt with the Bill. Bar one, there has been a lack of Divisions so far, so I hope that there will be no more Divisions after further debate.

I am going to give voice to amendment Nos 14 and 15, which were tabled in the names of Mervyn Storey, Peter Weir and Robin Newton. Although I commend the Committee's intention to provide statutory support to confirmed victims, I, too, am concerned about the wording of amendment No 13. It is too ambiguous to provide, with certainty, the minimum 12 months of support that confirmed victims of modern slavery need in order to recover from their exploitation and trauma.

Although amendment No 13 would provide new statutory support to confirmed victims, the wording:

"for 12 months (or less if not required)" lacks clarity on exactly how much support would be provided. It fails to provide the certainty that victims who have come through harrowing circumstances and abuse need in order to begin to move forward with their lives.

It is clear from the evidence from individuals who are working directly with victims of trafficking that 12 months is the absolute minimum amount of time that it takes for victims to recover from their trauma and abuse. Amendment Nos 14 and 15 provide the certainty and stability of the at least 12 months' support that victims desperately need and depend on during their recovery. When properly supported, victims are also more likely to engage with the police in investigations into their abusers and less likely to be re-trafficked. We need that input from victims in order to help prosecutions succeed. It is therefore essential that we adopt the more prescriptive approach of amendment Nos 14 and 15 in order to avoid being unintentionally restrictive in our provision of support to victims.

Amendment No 15 makes it clear that sections 18(5) and (7) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 will apply when determining what type of support will be considered necessary under amendment No 14. The amendments do not include the length of time for which victim support will be given, nor what might be left to chance. Amendment Nos 14 and 15 also leave the door open for the Department to provide additional discretionary support beyond 12 months, if the victim requires it.

We are talking about victims' needs here. Evidence shows that victims need at least 12 months' support, so I urge the Assembly to give that to them. I strongly support amendment Nos 14 and 15 and urge Members to vote in favour of them. As an Assembly, we have an opportunity to do the right thing and, as has already been said, lead the way with this groundbreaking statutory support. Why would we settle for something less than that in amendment No 13?

Common sense says that amendment Nos 14 and 15 provide greater and more certain support to confirmed victims of trafficking, so —

Photo of Naomi Long Naomi Long Alliance

Will the Member accept, however, that it could lead to a situation in which somebody who is no longer in need of support continues to receive it? We could even end up in a situation in which there is double funding, where somebody has moved away from that support, is in work and is in receipt of in-work benefit but would also be receiving payment from the public purse at the expense, potentially, of other services that are short of funds. What is key is to allow the discretion to continue. The work that the Committee has done has dealt with that situation appropriately.

Photo of Robbie Butler Robbie Butler UUP

I thank the Minister for her intervention. I am sure that she will speak to that. However, the amendments tabled are much more victim-centric. That is not to take away from what anyone is trying to do, but those are the points that need to be teased out in the debate. I will listen to further points that the Minister may make, but there was nothing —.

Photo of Mervyn Storey Mervyn Storey DUP

I thank the Member for giving way. This has come up on a number of occasions. By definition, anything in section 18 is conditional on the support that is provided on the basis of assessed need. Therefore, what, the Minister says, could happen is not as likely to happen, provided it stays within the confines of section 18, particularly section 18(5). That gives assurance. We are dealing with — my colleague will allude to this — individuals who have ended up in a dire situation. The numbers may not be as large as they are for some other crimes, but the impact is equally severe. The last Member to speak referred to the dramatic increase over the past year.

Photo of Christopher Stalford Christopher Stalford DUP

Can I say something before you resume, Mr Butler? You are making progress, but it was agreed that the sitting would be suspended at 5.00 pm. Do you think you will finish in three minutes, Mr Butler?

Photo of Robbie Butler Robbie Butler UUP

Oh, absolutely.

Photo of Christopher Stalford Christopher Stalford DUP

Oh, right. I thought that you were just getting started.

[Laughter.]

Mr Butler.

Photo of Robbie Butler Robbie Butler UUP

Thank you —.

Photo of Naomi Long Naomi Long Alliance

Given the short time that he has left, will the Member give me the opportunity to respond to what Mr Storey said?

Photo of Robbie Butler Robbie Butler UUP

As long as you keep it to no more than a minute, Minister.

[Laughter.]

Photo of Naomi Long Naomi Long Alliance

I appreciate your generosity.

That may have been the case, had the words "at least" not been included. Once you say that it has to be "at least 12 months", the discretion to remove the support when it is no longer needed is also removed. It obliterates the discretion that the Department holds.

Photo of Robbie Butler Robbie Butler UUP

I thank the Minister and the Chair of the Justice Committee for those points. We will continue to listen, but I have not heard anything that suggests that we will change our minds on the matter.

In conclusion, I simply urge Members to vote against amendment No 13 and in favour of amendment Nos 14 and 15. I ask that the Assembly gives victims of modern slavery the greatest chance to recover from their exploitation and to bring the perpetrators to justice.

Photo of Christopher Stalford Christopher Stalford DUP

By leave of the House, the sitting will be suspended until 5.30 pm. When we return, the next Member to speak on this group of amendments will be Ms Paula Bradshaw.

The debate stood suspended.

The sitting was suspended at 4.57 pm and resumed at 5.36 pm.

(Mr Speaker in the Chair)

Debate resumed.

Photo of Alex Maskey Alex Maskey Sinn Féin

We have resumed the sitting. Robbie Butler had just finished his contribution; I was nearly going to say, "thankfully", but I would not have meant that.

[Laughter.]

Photo of Paula Bradshaw Paula Bradshaw Alliance

I rise briefly to support amendment Nos 16 and 17. I will, however, oppose amendment Nos 14 and 15, which run contrary to the amendments agreed by the Committee as a whole. Although I will not seek to divide the House on them, I am unconvinced by amendment Nos 12 and 13. I am also concerned about resource implications, which have not been properly consulted on. There also appears to be a lack of cross-community consensus on those amendments, as amendment No 14 in particular contravenes and conflicts with amendment No 12. That speaks of a lack of clarity about what is being sought and about the purpose of such amendments.

I am particularly concerned —.

Photo of Mervyn Storey Mervyn Storey DUP

Will the Member give way?

Photo of Mervyn Storey Mervyn Storey DUP

I do not think that there should be any confusion. It is to absolutely ensure that there is no unintended consequence and that, by using the term "less", we have a situation whereby people in need get the service and support that they deserve. I give the Member the assurance that there is no intent to be Machiavellian, cute or clever here; there is no intent other than to ensure that we have good legislation. We want to pass good legislation, not something that we may have to come back to and rectify at some stage. My colleague will give a particular example that highlights the need to ensure that this is done properly.

Photo of Paula Bradshaw Paula Bradshaw Alliance

I appreciate your intervention.

I am particularly concerned about amendment No 14, as it means that support will not be provided on the basis of need but on the basis of a blanket time provision. That is not the sort of targeting of resources that we should seek. Likewise, amendment No 15 does not add anything to existing provisions. It is odd that that amendment has been brought forward by a single party rather than being raised at Committee.

Amendment No 16 is a more specific and clearly beneficial change to include class A drugs in the statutory defence for trafficking and exploitation offences. That will bring Northern Ireland into line with the rest of the UK, which is to be welcomed, and is a clear and useful addition to the Bill.

I am sympathetic to those who are seeking slavery and trafficking risk orders. Those orders were raised at the UK level in recent months in the review of the Modern Slavery Act 2015. It is useful to add the requirement to consult on them to this Bill, as it enhances what the Bill aims to do. I support amendment No 17 as a means to do that.

In closing, on the basis of today's debate, we still have a lot of work to do, and further work may be needed on some of the amendments. However, I urge rapid progress on the Bill, as it reflects an area of high sensitivity where Northern Ireland is being left behind.

Photo of Peter Weir Peter Weir DUP

I had the honour of being a Member of this House in 2015 when, with support from all sides of the House, we passed the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which was introduced by my friend and colleague Lord Morrow. That was one of the most significant and worthy pieces of legislation that had been brought through this House, and it made this House a shining example, leading the way for the rest of the UK. Although that was a very important and worthy Act, nothing ever stands completely still.

As time has developed, we have learned more and more about victims' needs. As with any legislation, we do not rest on our laurels; we look continually to improve it.

I will deal particularly with the issues that are raised in the amendments that Mr Storey, Mr Newton and I tabled. While there is a clear difference of position in amendment Nos 14 and 13, I do not believe that amendment No 14 is incompatible with amendment No 12 — the Committee amendment — of which I am very supportive. It would apply support during the recovery period, when the potential victim is going through the national referral mechanism, commonly known as NRM, and being confirmed as a victim or not of modern slavery. The Committee's intention is rightly to ensure that potential victims have the support that they need during that process.

I do not want to be churlish. Although we have a preference for amendment No 14, I will happily acknowledge that amendment No 13 is a step forward. As it stands, our statutory support ends when an individual is confirmed as a victim of modern slavery. After that, under section 18(5), support is only discretionary, and, in practice, according to the DOJ's figures, few individuals receive that discretionary support. Evidence has shown that a lack of long-term support leaves already vulnerable individuals at risk of homelessness, destitution and even the horrors of re-trafficking. There is a failure to provide certainty and stability. In those circumstances, we cannot expect individuals to help the police with information to prosecute perpetrators, which is so critical to our overall strategy against human trafficking.

Amendment No 13 would amend section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act to provide:

"12 months (or less if not required)".

That is a step forward. However, we support amendment No 14, rather than amendment No 13, because we contend that amendment No 13 does not go far enough. There is the potential to limit the intention of the amendment, as the wording —

Photo of Rachel Woods Rachel Woods Green

I thank the Member for giving way. Will he clarify his comments about amendment No 13? Is it his intention to oppose amendment Nos 12 and 13, which are both in the name of the Committee?

Photo of Peter Weir Peter Weir DUP

I indicated that I felt that amendment No 12 was also a step forward. Amendment No 13 is, largely, in conflict with amendment No 14. While amendment No 13 is, at least, some level of advance, amendment No 14 is better. That is the point that I am making. In case there is a lack of clarity, I say that we will certainly support amendment No 12, but, because there is a conflict between amendment No 14 and amendment No 13, we will support amendment No 14 as a preference to amendment No 13.

Amendment No 13 could be interpreted as having an upper time limit. Maybe that is a misinterpretation, but it certainly could be interpreted in that way. In addition, because it refers to 12 months or less, there is a danger of it being significantly less. Therefore, instead, my colleagues and I will support amendment Nos 14 and 15, which are in my name. They provide enhanced support for confirmed victims.

As has been indicated, amendment No 14 would provide "necessary assistance and support" under section 18(9) "for at least 12 months". Members may think that we are talking about semantics, but think about the wording of the two amendments from a victim's perspective. Sometimes, it is difficult to put yourself in other people's shoes, but I urge you to do that. They will wonder what support they will receive. Will it be one month, 12 months, at least 12 months or more, if that is needed? The support and the certainty will be make or break for victims of modern slavery in their recovery.

The Minister has indicated that not everyone needs a minimum of 12 months. To make that argument would be to dismiss all the evidence provided by the front-line charities that work with victims. They were vociferous when they made those comments to the Committee and separately to parties. Those charities said that 12 months should be the minimum, not the maximum, time for which confirmed victims should receive support. If support is provided, victims can engage with the police to bring about successful prosecutions.

There will, of course, be a cost. On balance, however, does the Minister not agree that it would be a price worth paying to see lives restored following exploitation?

The Minister's argument is largely that not every victim would require support for a full 12 months. We should remember that this is grounded in section 18. Section 18(5) creates the limitation on support, which is provided on the basis of assessed need. There would not be an assessed need for somebody to receive double funding, for example, so that would limit it. Different theoretical arguments can be used on that. From a practical point of view, I think that the direct costs would be minimal, but it would give a level of assurance.

Amendment No 15 safeguards against any potential concerns that the Department has no flexibility and that unnecessary support would be provided. It reaffirms the key provision of section 18: it is a needs-based support. Amendment No 14 would not discourage victims.

Photo of Peter Weir Peter Weir DUP

I will give way briefly.

Photo of Naomi Long Naomi Long Alliance

The Member referenced that, currently, the discretionary support extends only to a small number of victims and that it is based on need. The Department has not been found wanting when it comes to providing additional support where that is necessary. What the Member has proposed in the amendment cuts through the discretion that is based on need, because it states that a victim must be supported for "at least 12 months". Therefore, even if someone does not require that financial support, they are employed or are able to make their way in life without any additional financial support, at least 12 months' support must be given. The effect of that is that the discretion to say whether it is needed cannot be applied because it is overridden by the requirement to provide it for at least 12 months. That is the fundamental problem with the amendment. I think that we are all sympathetic to the case that is being made about the need for support, but the issue here is that you are saying that, irrespective of need, it must be given for at least 12 months. That is not necessarily a good use of public funds.

Photo of Peter Weir Peter Weir DUP

I have no doubt that the Minister and I have the same good intentions in that regard. I do not impugn any motivation. The amendment makes two clear points. One is that it gives some certainty. For those who seek that level of support, it reassures them that the rug will not be pulled from under them. That might be a false worry, but it will be uppermost in people's minds. The second point is that, when we say that it will be for 12 months or less, while it gives support, it is provided on the basis of the assessed need. That is circumscribed under section 18(5). Therefore, the idea of an unlimited level of support, irrespective of whether it is needed, is not accurate.

It is also important for Members to realise that the support that we would give would be only to genuine victims of modern slavery who need it vitally. They would be individuals who had gone through the UK Government's processes and been confirmed by the Home Office as genuine victims of modern slavery. It is unfair and unrealistic to expect those victims to fend for themselves once they have exited the NRM. Victims face an uphill climb with their recovery.

Take, for example, the particular case of a client of Flourish NI, one of the leading charities for victims of human trafficking. We will call him "Lucas". Flourish NI works with victims once they have exited the NRM. Lucas is a European national who was trafficked to Northern Ireland for the purposes of criminal exploitation. He has had a positive conclusive grounds decision. Lucas is not eligible to receive EU settled status because he has not been in Northern Ireland for five years. He has applied for pre-settled status. It is appalling that Lucas has been left homeless ever since he exited the NRM. Without extended support, he has no choice but to sofa-surf. At one point, he had to live in a tent. Lucas wants to start work, begin to rebuild his life and make a contribution to society. However, without a fixed address, that is virtually impossible.

He is also managing two serious health conditions that require ongoing treatment and constant monitoring, but he has unsuccessfully sought assistance from the Housing Executive and social services. He is entirely reliant on charitable support, which is coordinated by Flourish NI. Lucas is just one example, but his is not a one-off case.

Photo of Rachel Woods Rachel Woods Green

I thank the Member for giving way. Will he clarify whether the two amendments tabled in his name cover people who have exited the NRM? The example that the Member is giving is of someone who has left that process. I would welcome clarity on whether the amendments that he tabled cover support after the NRM process has been finalised.

Photo of Peter Weir Peter Weir DUP

They would cover the full year. At the moment, the danger is that people simply exit at the referral mechanism point, and there is no support beyond that. As I said, Lucas is not just a one-off example. There is significant evidence of genuine victims in similar circumstances, not just in Northern Ireland but in England and Wales. The question is this: how are individuals like Lucas not considered to be in need of extended support? Clearly, there is a need for 12 months' support, which has been acknowledged by the national Government at Westminster. In a recent House of Commons debate on the Nationality and Borders Bill, they gave an assurance that they would provide 12 months' tailored support to confirmed victims and said that they would set out further details and guidance. This has been accepted nationally.

During last week's debate in the House of Lords, it was suggested that Westminster could learn from the Committees, and I hope that the amendment is recognition of the need for long-term statutory support for confirmed victims.

We have the opportunity, if we accept amendment No 14, to lead the way in providing at least 12 months' statutory support to confirmed victims. Alternatively, if we accept amendment No 13 and provide 12 months "or less if not required", we will be playing catch-up with Westminster for years to come. If genuine victims in England and Wales need at least 12 months' support, why would genuine victims in Northern Ireland need less? All victims go through the same NRM identification process, so it makes no logical sense that victims in Northern Ireland would be in less need than those across the water.

I turn to the other amendments. Amendment No 16 would protect victims from being punished for crimes committed as a result of their exploitation by extending the statutory defence to include class A drugs. This is to meet an emerging form of exploitation, which is human trafficking for distribution. I appreciate that there have been differences on some of the other amendments, but I hope that Members will agree on the need to view victims through the lens of their exploitation and not through the lens of criminality when it comes to crimes that stem from their exploitation.

Amendment No 17 would allow the Department to introduce slavery and trafficking risk orders. We need to get ahead of traffickers. We have to realise that, whatever actions are taken by the House or the police, criminals who are intent on the evil practice of trafficking are always trying to stay one step ahead of us. When it comes to those who are awaiting prosecution, it is important that we nip any further exploitation or trafficking in the bud. Amendment No 17 would mean playing catch-up with England and Wales, which have had STROs since 2015, but it is a welcome step forward.

In closing, my plea to Members is to vote against Committee amendment No 13, not because it is not a step forward — I acknowledge that it is — but because amendment Nos 14 and 15 put forward a better alternative to provide enhanced support for confirmed victims in Northern Ireland.

Every day, we deal with many things that are controversial or political in the Assembly, but this should not be one of them. This should be about people, not politics. It is difficult for all of us in the Chamber to imagine the horrors that victims of modern slavery have had to go through. It is about providing those people with the best support available, and amendment Nos 14 and 15 do that. Through these amendments, we can recapture the position of 2015 and be on the verge of having groundbreaking human trafficking legislation.

Let us get the amendments right for the sake of the victims of modern slavery, like Lucas and the others, who will be impacted by them. Let us take a lead rather than catching up with others in a year or two's time.

Photo of Rachel Woods Rachel Woods Green

I welcome the opportunity to take part in the debate on the group 2 amendments, which focus on human trafficking protections. As others have outlined, the amendments are mostly about the trafficking and exploitation of people, and they look to further protect some of our most vulnerable people. I do not intend to speak for long on the group, you will be glad to know, as the majority of the points have been covered by the Chair and other members of the Committee, but I want to touch on a few things and to highlight some areas that need further work and focus, especially in the next mandate.

The Committee had long discussions on the effect of clause 16 and the extension of the statutory assistance and support provided under section 18 of the 2015 Act to potential adult victims of slavery, servitude or forced or compulsory labour where there is no element of trafficking. Support to such victims has been in place in Northern Ireland since March 2016 but not as a statutory requirement. A number of organisations raised the point that the provision could be extended, as we heard that victims of human trafficking in Northern Ireland had experienced destitution and homelessness despite a positive national referral mechanism outcome. We have, however, heard a mix of positions on whether to make legislative change and, if it is needed, what it could be or look like. There were many discussions on social security support, and it is my understanding that the Minister of Justice cannot legislate on that. I encourage the Minister for Communities to investigate what can be done in her Department on the provision of social security support.

The Committee also tabled amendment No 12, which uses the words "based on need". Whilst the Department has flexibility and provides support, the amendment explicitly writes it into primary legislation that support should be based on need. The amendment should not be the end, and I encourage, as requested by the Migration Justice Project, the Department to consult on how better to practically administer support in the post-NRM stage that is based on the individual's need.

I am a bit surprised to see the amendments in the names of the Chair, Mr Newton and Mr Weir. The Committee did not get a chance to discuss them, and I appreciate that timing is always an issue when a Bill is coming to Consideration Stage. However, it is my understanding that amendment Nos 14 and 15 are mutually exclusive to amendment No 13 and that it will be up to Members to decide between them. I know that Mr Weir has provided an explanation, but what is the rationale for creating a 12-month basis if what is proposed in the Committee amendment is support based on need? Surely support should be given to people on the basis of need. I understand the concept of a minimum floor, as it were, but, if someone does not need support after 12 months, will we have a situation, which others have touched on, where they have to continue receiving support under amendment No 14? What if the person is out of the country? What if the person is no longer in Northern Ireland? How will that work with amendment No 14? Is it good practice?

The Committee discussed and deliberated on those issues and settled on a needs-based approach, which is what we have in amendment No 12. I know that the Department has discretion and exercises it, but amendment No 12 makes it much more specific. Have the Members who have tabled the amendments considered, in the crudest way — I am not one to make that kind of comment — the potential impact of amendment No 14 on public expenditure?

I am still at a loss about what amendment No 15 does and why it has been tabled. I will happily take an intervention from any of the Members who tabled it so that they can explain what gap it closes.

I fully support amendment No 17, which was tabled by the Committee. I am glad to see future protective measures for the victims of slavery and trafficking being debated today. We have not specifically mentioned only risk orders and notices on the Bill, and I welcome the commitment from the Department to consult on those, albeit before the end of the mandate. However, there is work to be done on their effectiveness for Northern Ireland, especially in recognising the cross-border issues and learning from experiences in Great Britain. Amendment No 17 is, therefore, an enabling provision, much like what we did on protection orders and notices in the Domestic Abuse and Civil Proceedings Act.

Finally, I will support amendment No 16, which will provide adequate protection for victims of an emerging form of exploitation by extending the statutory defence on exploitation to include class A drugs. It makes no sense to differentiate or to have any uncertainty over the application of the non-punishment principle.

We heard that from the Migration Justice Project, when it pointed out that having that gap in law does not meet the Organization for Security and Co-operation in Europe and UN special rapporteur's advice on the non-punishment principle, given the finite number of offences to which it applies. I thank them for the excellent briefings and information provided to the Committee throughout the process, which were of great assistance.

I hope that Members will agree that we need to decriminalise drugs fully in our society, given that it is a healthcare matter rather than one that should rest with the criminal justice system. I would welcome debate on that in the future.

I will finish with some things that were not brought forward by the Committee but are relevant to the amendments and can be picked up at a later stage, perhaps in part 2, and support and assistance for victims of trafficking and modern slavery. A number of organisations stated that the statutory defence does not provide a remedy for recognised victims who have prior convictions relating to exploitation related to prostitution and that makes it extremely difficult for trafficked women to exit prostitution and move into mainstream employment, even if they are recognised as having been trafficked. After we questioned officials, it became clear that the number affected in Northern Ireland is likely to be no more than 50, given that prostitution has not been an offence since 2015. However, it is worth looking at.

The national referral mechanism is also a framework for identifying and referring potential victims of modern slavery and ensuring that they receive appropriate support. We have had that discussion around clause 16 and the associated amendments that we are debating in the group. We are looking at expanding the support available for those with a positive decision. We also looked at what happens to those who are assessed under the NRM but get a negative grounds decision. We discussed a possible amendment, but it was stated that there is no appeal mechanism. The only option for someone to challenge that decision is through a judicial review. I hope that that can be looked at in the Department's modern slavery strategy and action plan.

Finally, on family reunion rights, we know that that sits with Westminster, as it falls under immigration. However, I urge all Executive Ministers to make representations to the UK Government on the need for safe and legal routes for family reunions for victims of trafficking and asylum seekers in Northern Ireland. There are well-known issues with asylum claims, the backlog and the process of seeking asylum and refuge in Northern Ireland, and those must be determined without undue delay.

That concludes my remarks on group 2.

Photo of Naomi Long Naomi Long Alliance 6:00 pm, 15th February 2022

I will speak to the amendments in the group as they appear on the Marshalled List.

The Committee has tabled two amendments to clause 16 relating to the support for victims of trafficking and exploitation. The amendments are twofold, proposing to amend the existing discretionary power afforded to the Department to support those who are seeking a conclusive grounds determination under the national referral mechanism. The first amendment, amendment No 12, would specify that support can be provided beyond the 45 days specified in the Act. The second amendment, amendment No 13, would place a duty on the Department to provide support following a positive conclusive grounds decision under the NRM process for 12 months or less if not required.

The existing provisions in the legislation already give the Department the power to provide support to a victim or potential victim beyond the time specified in the legislation for such time as the Department considers it necessary. In practice, the Department has continued to provide support beyond 45 days, until the NRM process has reached a decision on conclusive grounds. The Department has also continued to provide support beyond a positive decision in a number of cases where the Department assessed that that was necessary.

Introducing a specified period is unnecessary and may, mistakenly, be seen by some as meaning the provision must be made for 12 months. That would have significant resource implications, given the sharp rise in the number of potential victims of trafficking in this current year and the pressure that that creates on existing budgets. The Department will continue to provide support where necessary, but there is a danger that a specified period of 12 months could create a perception that there is a blanket provision of support for all, regardless of assessed need. I am satisfied that the Department's discharge of its duties to provide support under the existing provisions is appropriate and flexible enough to ensure that victims and potential victims are given adequate support in line with our resources. However, I am mindful of the Committee's concerns regarding the provision of appropriate support for vulnerable people who have been trafficked in their transition back to normal life. On that basis, I am prepared to support the amendment.

Amendment Nos 14 and 15, tabled by Mr Storey and his party colleagues on the Committee, are competing amendments to other amendments tabled to clause 16. Amendment Nos 14 and 15 conflict with those tabled on behalf of the Committee. Amendment No 14 would go further than the Committee's amendment No 12, as it would require the Department to provide support, post a conclusive grounds decision, "for at least 12 months". That would remove any element of discretion from the Department and mean that there would be no assessment of need undertaken and no power to cease to provide support where it is no longer needed. I am therefore opposed to that amendment. It would encourage victims to remain on the support provided by the Department for at least 12 months, not on the basis of need but because of a blanket provision that the amendment provides.

The wording in the amendment also opens up the prospect of support having to be provided on an open-ended basis through the inclusion of the words "at least 12 months". That is irrespective of need. I argue that that would not be a good use of limited public funds, which should be targeted on the basis of need. It could also lead to double payment in the circumstances that I described in my earlier interventions, where someone may have moved beyond the need for support and be in paid employment but may be in receipt of in-work benefits and also entitled to the payment from the Department for at least 12 months. That is a disincentive for victims to seek to move towards what we all desire, which is a new life that is stable, and it may open up the possibility of abuse of the system of support.

(Mr Deputy Speaker [Mr McGlone] in the Chair)

There is no uniformity in the circumstances of victims of trafficking. Each case has its own unique needs, and the flexibility of the existing provisions and, indeed, the provisions that the Committee has proposed gives the Department the ability to tailor support to those needs. In recent years, after a conclusive grounds decision, the support has not been required in every case for as long as 12 months. Where additional support has been required, however, the Department has not been found wanting. The case of Lucas, as outlined by the Member for Strangford, is, of course, a concerning case. I stress, however, that someone in those circumstances as described by the Member would already be supported by the Department if it were made aware of the circumstances. Support is already provided well in excess of the statutory limits as a matter of discretion.

There are a number of ways forward for some victims of trafficking when they leave the NRM process. Some will be able to find employment and begin the process of rebuilding their lives. Some may be seeking asylum under that system, and they may be able to avail themselves of the benefits system for a range of support. As I said, the discretionary support that the Department provides is there to help those victims who may need help to bridge the gaps until such a time as they are able to move forward.

Furthermore, amendment No 14 would have significant resource implications, as the increase in potential victims seeking to enter the NRM has risen sharply this year, with many claiming to have been exploited or trafficked in third countries, where it is not easy to verify any such claim. It is not the case that that would apply to a small number of victims. It could reach into the hundreds, if people seek to claim that they are in that situation. The Department will continue to support those who are given a conclusive grounds decision based on need, but, if the amendment is made, its outworking would be that the Department will have to provide support to a much larger number, even when it is not required.

As I noted earlier, the Department has not been found wanting in providing support generously and judiciously where there is need. The amendment would take away the Department's discretionary power to support victims of trafficking who are most in need. The consequence of that may be that we end up affording support to people who do not need it at the expense of targeting our resources at catching those who are responsible for trafficking in the first place. An open-ended pot of money is not available. As with all public spend, we need to ensure that it is targeted at the right people. None of us in the Chamber disputes the need to support victims of trafficking and to do so in a way that is proportionate to their need. There is no dispute about that, but it has to be proportionate to need and not an open-ended undertaking.

The second amendment proposed by Mr Storey and his party colleagues — amendment No 15 — does not appear to add anything to the existing provisions in section 18 of the 2015 Act. Therefore, I oppose that amendment on those grounds.

I am sympathetic to the Committee's amendment No 16, which is also to clause 16 and seeks to widen the statutory defence for trafficking and exploitation offences to include class A drugs. As that is in line with the equivalent provisions that apply in other jurisdictions in the UK, I support the amendment and recognise that class A drugs, as well as other classes of drugs, can be used to coerce an individual. It is right that we should not find people guilty where they have undertaken actions as a result of coercive control.

The last of amendments to Part 2 is amendment No 17, which introduces a new clause to allow the Department to introduce measures through regulations within 24 months of the commencement of the Bill to protect a person from slavery or trafficking. I am supportive of the amendments relating to the provision of powers for the Department to introduce those additional measures. The amendment will facilitate any changes to the existing legislation that may be brought forward on slavery and trafficking risk orders and duty to notify provisions, which will be subject to a consultation exercise that is due to launch shortly. There has been pressure to introduce STROs from some of those who made submissions to the Committee, and it may also have been the desire of some on the Committee to introduce them. However, the amendment, as drafted, allows the Department to conclude the consultation exercise and take a decision on the issue based on the best evidence. I support the amendment on that basis.

That brings my remarks on the amendments in group 2 to a conclusion. Again, I express my gratitude to the Committee for the detailed consideration its members have given the entire Bill. I appreciate the Committee's desire to make the legislation as robust and wide-reaching as possible, but I also welcome its genuine intention to support vulnerable individuals in our community and to work closely with my Department to ensure that the Bill is able to reach its conclusion within this mandate. That has been my goal since becoming Minister of Justice, and I consider it a major achievement to have brought the Bill to and through Consideration Stage.

This is the last of five Justice Bills progressed during this mandate. It has been a challenging programme of legislation, but the amendments tabled to the Bill that have been debated today will make our community safer by further strengthening existing law and introducing new offences.

The Bill represents the last piece of legislation in a suite of Bills that aim to provide greater protection across our community from those who seek to blight people's lives through demeaning, controlling, coercive, threatening or aggressive behaviour, through stalking and through sexual and domestic abuse. I look forward to a time when such behaviours are no longer a cause for concern. We are not there yet — there is much work still to be done — but the Bill, as it stands today and as, I trust, it will stand when amended, will be a good step forward.

Photo of Mervyn Storey Mervyn Storey DUP

I thank Members and the Minister for their contributions to the debate on the group 2 amendments, particularly those who spoke in support of the Committee amendments, including the Minister. As I indicated earlier, the Committee is happy to work with the Department on any minor, technical or drafting amendments that it proposes for the Further Consideration Stage that improve the amendments that we have debated today, assuming that they are made.

It is worth remembering that this Part of the Bill and these amendments aim to provide support and assistance to some of the most vulnerable people in society, who have been subjected to some of the most horrendous crimes. In relation to the Committee amendments — amendment Nos 12 and 13 — and those tabled in my name and the names of my colleagues — amendment Nos 14 and 15 — there is a clear consensus among Members that victims should be provided with the support and services that they require and deserve.

I take the point that was made by Rachel Woods. It was probably just one of the reflections of the pressure of time that, when you get to this point in a mandate and this point with a piece of legislation of this magnitude, there is probably more that you could have taken time to explore further. However, that is just one of the indications of how we need to be cautious and careful in the way that we approach these things.

That having been said, I want — I say this as a Member and not as the Chair — to assure other Members that this is not a party political issue and is not being done, as I said earlier, to try to undermine the Department or be in any way clever in playing with the Bill. It is genuinely to ensure — I will come to the Minister's comments in a minute or two — that support is given. I think that there is a consensus on that right across the House. The difference of opinion is on which amendment, whether amendment No 13 or 14, does that best. The House will decide that this evening. We will leave that with Members to decide. We will then look at the Bill as it progresses to Further Consideration Stage. As Chair of the Committee, I appreciate the support of Members and the Minister for the Committee's amendments. I trust that we will be able to continue to work to ensure that we see delivery on the issues.

I turn to the other Committee amendments, namely amendment Nos 16 and 17. I welcome the support across the House for both of those amendments. They will, I trust, enhance protection, as described by Sinéad Bradley. They will provide the foundation stone for the STROs but also for other protective measures to be taken forward by the Department within a set time frame, given the delays that have been experienced in the provision of STROs to date.

I will conclude with a few comments as a Member of the House. I go back to the points that were made about the amendments that are tabled in my name. I want to address the Minister's comment about the support provided under amendment No 14. I want to stress that that support would be provided on the basis of assessed need, not because we say that but because of what is in section 18(5) of the Human Trafficking and Exploitation Act 2015. The level of support will be proportional to what a victim needs.

Photo of Mervyn Storey Mervyn Storey DUP

Yes, I will; just let me make this point.

Contrary to the Minister's point, victims would not get more than they need at the expense of others who need more. I want Members, who will have to make a decision, to be clear on the intent: it is not just that we have put that in the amendment; it relates to section 18(5) of the Human Trafficking and Exploitation Act 2015.

Photo of Naomi Long Naomi Long Alliance

I accept the Member's integrity in tabling the amendment, but I believe that he is reading this incorrectly. The requirement to provide support for at least 12 months cuts across the need case. You are correct that we could reduce the level of support, but we could not remove support from any victim within 12 months, even if we have the proof that that is no longer needed. You are right that the previous legislation set in place that it is a needs-based test. However, by saying that it becomes a date-based test, which is what you are introducing in your amendment, the needs base is overridden. Essentially, we do not have the opportunity to say, "This person no longer needs support. We will stop". Within 12 months, they are entitled to that support irrespective of whether it is needed or not. That is the challenge, and that is why I prefer the Committee amendment. The Committee amendment allows us to do that and gives us the discretion to continue it for as long as the Member would wish, and certainly for as long as the Department sees as absolutely necessary.

Photo of Mervyn Storey Mervyn Storey DUP

I thank the Minister for that, although we still have a difference in our interpretations. I do not want to labour the point, because I do not want to give anyone the impression that, somehow, this is about anything other than ensuring that we make the best possible provision to meet the needs of those who find themselves in the horrendous situation of being trafficked.

It was interesting that the Government at Westminster recently acknowledged that those who receive a positive conclusive grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. I suppose that the point was made by my colleague: if that is applicable to victims in England and Wales, it is also applicable to victims in Northern Ireland.

I conclude my comments there. The amendments are before the House. As always, that will determine what the outcome of this piece of legislation will be at this stage, and we look forward to how we will finally shape the Bill at Further Consideration Stage.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

OK, Members. We will work our way through the various amendments.

Amendment No 12 agreed to.

Amendment No 13 proposed:

In page 20, line 6, at end insert—

<BR/>

“(ab) in subsection (9) leave out ‘such further period as the Department thinks necessary’ and insert ‘for 12 months (or less if not required)’:’’. — [Mr Storey (The Chairperson of the Committee for Justice ).]

Question put, That amendment No 13 be made.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Judging by that, I think that the Ayes have it.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

No? OK. Clear the Lobbies. The Question will be put again in three minutes. I remind Members to continue to uphold social distancing and that those who have proxy voting arrangements in place should not come to the Chamber.

Before I put the Question again, I remind Members present that, if possible, it would be preferable to avoid a Division

Question, That amendment No 13 be made, put a second time.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Before the Assembly divides, I remind Members that, as per Standing Order 112, the Assembly has proxy voting arrangements in place. Members who have authorised another Member to vote on their behalf are not entitled to vote in person and should not enter the Lobbies. I also remind Members of the requirement for social distancing while the Division takes place, and I ask that you ensure that you retain a gap of at least 2 metres between you and other people when moving around in the Chamber or the Rotunda, and especially in the Lobbies. Please be patient at all times, observe the signage and follow the instructions of the Lobby Clerks.

The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 46; Noes 37

AYES

Dr Archibald, Ms Armstrong, Ms Bailey, Mr Blair, Mr Boylan, Ms S Bradley, Ms Bradshaw, Ms Brogan, Mr Catney, Mr Delargy, Mr Dickson, Ms Dillon, Ms Dolan, Mr Durkan, Ms Ennis, Ms Ferguson, Ms Flynn, Mr Gildernew, Ms Hargey, Ms Hunter, Mr Kearney, Mrs D Kelly, Mr G Kelly, Ms Kimmins, Mrs Long, Mr Lyttle, Mr McAleer, Mr McCrossan, Mr McGrath, Mr McGuigan, Mr McHugh, Ms McLaughlin, Mr McNulty, Ms Mallon, Mr Muir, Ms Á Murphy, Mr C Murphy, Ms Ní Chuilín, Mr O'Dowd, Mrs O'Neill, Mr O'Toole, Miss Reilly, Ms Rogan, Mr Sheehan, Ms Sheerin, Miss Woods

Tellers for the Ayes: Mr Blair, Mr Dickson

NOES

Dr Aiken, Mr Allen, Mr Allister, Mrs Barton, Mr Beattie, Mr M Bradley, Ms P Bradley, Mr K Buchanan, Mr T Buchanan, Mr Buckley, Ms Bunting, Mr Butler, Mrs Cameron, Mr Chambers, Mr Clarke, Mrs Dodds, Mr Dunne, Mr Easton, Mrs Erskine, Mr Frew, Mr Givan, Mr Harvey, Mr Hilditch, Mr Humphrey, Mr Irwin, Mr Lyons, Miss McIlveen, Mr Middleton, Mr Nesbitt, Mr Newton, Mr Poots, Mr Robinson, Mr Stewart, Mr Storey, Mr Swann, Mr Weir, Mr Wells

Tellers for the Noes: Mr Storey, Mr Weir

Question accordingly agreed to.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

I will not call amendment No 14 as it is mutually exclusive to amendment No 13, which has just been made.

Amendment No 15 proposed:

In page 20, line 6, at end insert—

<BR/>

“(ac) after subsection (9) insert—


‘(9A) In determining the assistance that is necessary under subsection (9) the Department must have regard to subsections (5) to (7).’”. — [Mr Weir.]

Question put, That the amendment be made.

Some Members:

Aye.

Some Members:

No.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

OK, Members. For clarity, we will see whether this needs to go to a Division.

Question, that the amendment be made, put a second time.

Some Members:

Aye.

Some Members:

No.

Photo of John O'Dowd John O'Dowd Sinn Féin

Members do not want to divide.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

Are Members OK? You do not want to divide. All right. Finally, for that purpose, I will put the Question again.

Question, That the amendment be made, put a third time and negatived.

Amendment No 16 made:

In page 20, line 12, at end insert—

<BR/>

“(4) In section 22 (Defence for slavery and trafficking victims in relation to certain offences)—


(a) in subsection (9)(a)(i) after ‘of a’ insert ‘Class A,’,


(b) In subsection (9)(a)(ii) after ‘of a’ insert ‘Class A or,’”. — [Mr Storey (The Chairperson of the Committee for Justice ).]

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

New Clause

Amendment No 17 made:

After clause 17 insert—



Protective measures for victims of slavery or trafficking


 


17A.—(1) The Department of Justice may by regulations, within 24 months of Royal Assent, make provision—


(a) enabling or requiring steps to be taken or measures to be imposed for protecting a person from slavery or trafficking,


(b) for the purpose of or in connection with such steps or measures for protecting a person from slavery or trafficking.


(2) Steps or measures which may be provided for in regulations under this section are not limited to notices or orders.


(3) The regulations may not be made unless a draft has been laid before and approved by a resolution of the Assembly.” — [Mr Storey (The Chairperson of the Committee for Justice ).]

New clause ordered to stand part of the Bill.

Clauses 18 and 19 ordered to stand part of the Bill.

New Clause

Amendment No 18 made:

After clause 19 insert—



“CHAPTER 2


 


CAUSING OR RISKING SERIOUS HARM


 


Consent to harm for sexual gratification is no defence


 


19A.—(1) For the purpose of determining whether a person (‘A’) who inflicts serious harm on another person (‘B’) is guilty of a relevant offence, it is not a defence that B consented to the infliction of the serious harm for the purpose of obtaining sexual gratification.


(2) The reference in subsection (1) to obtaining sexual gratification is to obtaining it for any person (whether for A, B or some other person).


(3) In this section—


‘the 1861 Act’ is the Offences Against the Person Act 1861,


‘relevant offence’ means any of these—


(a) an offence under section 18 of the 1861 Act,


(b) an offence under section 20 of the 1861 Act,


(c) an offence (but not common assault) under section 47 of the 1861 Act,


‘serious harm’ means any of these—


(a) wounding within the meaning of section 18 of the 1861 Act,


(b) grievous bodily harm within the meaning of section 18 of the 1861 Act,


(c) actual bodily harm within the meaning of section 47 of the 1861 Act.


(4) However, this section does not apply in the case of an offence under section 20 or 47 of the 1861 Act where—


(a) the serious harm consists of, or is a result of, the infection of B with a sexually transmitted infection in the course of sexual activity, and


(b) B consented to the sexual activity in the knowledge or belief that A had the sexually transmitted infection.


(5) Nothing in this section affects the operation of any rule of law, or any statutory provision (as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954), relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence.” — [Mrs Long (The Minister of Justice).]

New clause ordered to stand part of the Bill.

New Clause

Amendment No 19 made:

After clause 19 insert—



Offence of non-fatal strangulation or asphyxiation


 


19B.—(1) A person (‘A’) commits an offence if the first and the second conditions are met.


(2) The first condition is that A intentionally—


(a) applies pressure on or to the throat or neck of another person (‘B’), or


(b) does something to B, of any other sort, amounting to battery of B.


(3) The second condition is that A—


(a) intends A’s act to affect B’s ability to breathe or the flow of blood to B’s brain, or


(b) is reckless as to whether A’s act would affect B’s ability to breathe or the flow of blood to B’s brain.


(4) An offence under this section is committed irrespective of whether in fact A’s act affects B’s ability to breathe or the flow of blood to B’s brain.


(5) An offence under this section can be constituted by virtue of A’s act irrespective of how A’s act is done (for example, by use of a hand or another part of A’s body or by A making use in any way of an object of any kind).


(6) It is a defence to an offence under this section for A to show that B consented to A’s act, but the defence is not available if—


(a) B suffers serious harm as a result of A’s act, and


(b) A—


(i) intended A’s act to cause B to suffer serious harm, or


(ii) was reckless as to whether A’s act would cause B to suffer serious harm.


(7) No question as to B’s consent to A’s act may be considered for the purpose of this section unless the question is relevant in relation to the defence in this section.


(8) The matter of B’s consent on which the defence in this section may be based is to be taken to be shown by A if—


(a) evidence adduced is enough to raise an issue with respect to the matter, and


(b) the contrary with respect to the matter is not proved beyond reasonable doubt.


(9) If—


(a) an act is done in a country or territory outside the United Kingdom,


(b) an offence under this section would be constituted by virtue of the act if done in Northern Ireland, and


(c) the person who does the act is a United Kingdom national or is habitually resident in Northern Ireland,


the person commits an offence under this section as if the act is done in Northern Ireland.


(10) A person who commits an offence under this section is liable—


(a) on summary conviction, to imprisonment for a term not exceeding 2 years or a fine not exceeding the statutory maximum (or both),


(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).


(11) In this section—


‘the 1861 Act’ is the Offences Against the Person Act 1861,


‘serious harm’ means any of these—


(a) wounding within the meaning of section 18 of the 1861 Act,


(b) grievous bodily harm within the meaning of section 18 of the 1861 Act,


(c) actual bodily harm within the meaning of section 47 of the 1861 Act,


‘United Kingdom national’ means an individual who is—


(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,


(b) a person who under the British Nationality Act 1981 is a British subject, or


(c) a British protected person within the meaning of the British Nationality Act 1981.


(12) Schedule 4 contains consequential amendments in connection with this section.” — [Mrs Long (The Minister of Justice).]

New clause ordered to stand part of the Bill.

Clause 20 ordered to stand part of the Bill.

Clause 21 (Commencement)

Amendment No 20 made:

In page 21, line 20, leave out paragraph (a) and insert—



“(a) sections 16 to 19A,”. — [Mrs Long (The Minister of Justice).]

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Schedule 3 (Offence of breach of anonymity: Providers of information society services)

Amendment No 21 made:

In page 27, leave out lines 18 to 28 and insert—



“&#x0027;information society service;’ means any service normally provided—


(a) for remuneration,


(b) at a distance (namely, the service is provided without the parties being simultaneously present),


(c) by electronic means (namely, the service is—


(i) sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and


(ii) entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means), and


(d) at the individual request of a recipient of services (namely, the service is provided through the transmission of data on individual request);”. — [Mrs Long (The Minister of Justice).]

Amendment No 22 made:

In page 27, leave out lines 33 to 36. — [Mrs Long (The Minister of Justice).]

Schedule 3, as amended, agreed to.

New Schedule

Amendment No 23 made:

After schedule 3 insert—



“SCHEDULE 4


 


OFFENCE OF NON-FATAL STRANGULATION OR ASPHYXIATION: CONSEQUENTIAL AMENDMENTS


 


Police and Criminal Evidence (Northern Ireland) Order 1989 (NI 12)


 


1. In Article 53A (qualifying offences for particular investigative purposes), in paragraph (2)—


(a) the second of the two sub-paragraphs numbered as (t) is renumbered as (u),


(b) after the second of those two sub-paragraphs insert—


‘(v) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Sexual Offences Act 2003 (c. 42)


 


2. In Schedule 5 (lists of offences for making particular orders), after paragraph 171G insert—


‘171H An offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Criminal Justice (Northern Ireland) Order 2008 (NI 1)


 


3. In Schedule 2 (lists of offences for sentencing matters), in Part 1


(a) the second of the two paragraphs numbered as 31A is renumbered as 31B,


(b) after the second of those two paragraphs insert—


 


The Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022


 


31C An offence under section 19B (non-fatal strangulation or asphyxiation).’


 


Domestic Violence, Crime and Victims Act 2004 (c. 28)


 


4. In section 7A (certain rules of evidence and procedure), after paragraph (b) of subsection (2) insert—


‘(c) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’


 


Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 (NI 14)


 


5. In Article 2 (unjustifiable punishment of children), in paragraph (2)—


(a) omit the ‘and’ preceding sub-paragraph (e),


(b) after sub-paragraph (e) insert—


‘(f) an offence under section 19B of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (non-fatal strangulation or asphyxiation).’” — [Mrs Long (The Minister of Justice).]

New schedule agreed to.

Long Title

Amendment No 24 made:

Leave out “rules applying with respect to certain sexual or violent offences prevention orders” and insert—



“certain rules of law and procedure for the purpose of protecting people from harm”. — [Mrs Long (The Minister of Justice).]

Long title, as amended, agreed to.

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party 6:45 pm, 15th February 2022

That concludes the Consideration Stage of the Justice (Sexual Offences and Trafficking Victims) Bill. The Bill stands referred to the Speaker.

Members should take their ease while we move to the next item of business.