Report on the Legislative Consent Motion: Police, Crime, Sentencing and Courts Bill
NIA 139/17-22 Committee for Justice.
Session: Session currently unavailable
Date: 04 November 2021
Reference: NIA 139/17-22
Committee for Justice
Report on the Legislative Consent Motion: Police, Crime, Sentencing and Courts Bill
Ordered by the Committee for Justice to be printed on 4 November 2021
Report: NIA 139/17-22 Committee for Justice.
- Minutes of Proceedings
- Minutes of Evidence
- Memoranda and Papers from the Department of Justice
- Memoranda and Papers from Others
- Legislative Consent Motion: Police, Crime, Sentencing and Courts Bill
The Committee for Justice is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the Northern Ireland Act 1998 and under Standing Order 48. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Justice and has a role in the initiation of legislation.
The Committee has power to:
- consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
- approve relevant secondary legislation and take the Committee Stage of primary legislation;
- call for persons and papers;
- initiate inquiries and make reports; and
- consider and advise on matters brought to the Committee by the Minister of Justice.
The Committee has 9 members, including a Chairperson and Deputy Chairperson, and a quorum of five members. The membership of the Committee is as follows
- Mr Mervyn Storey MLA (Chairperson)
- Ms Sinéad Ennis MLA (Deputy Chairperson)
- Mr Doug Beattie MLA
- Ms Sinéad Bradley MLA(3)
- Ms Jemma Dolan MLA (4)
- Mr Robin Newton MLA
- Ms Martina Anderson (6)
- Ms Emma Rogan MLA,
- Mr Peter Weir MLA
- Ms Rachel Woods MLA
Full explanation of Abbreviation/Acronym
Attorney General for Northern Ireland
Crime (Overseas Production Order) Act 2019
European Convention on Human Rights
Independent Commission for the Location of Victims Remains
Information Commissioner’s Office
Legislative Consent Motion
National Driver Offender Retraining Scheme
Northern Ireland Commissioner for Children and Young People
Northern Ireland Human Rights Commission
Northern Ireland Office
Northern Ireland Policing Board
Overseas Production Order
Police and Criminal Evidence Act 1984
Police, Crime, Sentencing and Courts Bill
Policing and Community Safety Partnership
Proceeds of Crime Act 2002
Public Protection Arrangements for Northern Ireland
Police Service of Northern Ireland
Sexual Harm Prevention Orders
Sexual Risk Orders
- The Police, Crime, Sentencing and Courts Bill was introduced in the House of Commons on 9 March 2021. The latest version of the Bill can be found at https://bills.parliament.uk/bills/2839 .
- The majority of the provisions of the Bill as introduced apply to England and Wales only but there are a number of matters that extend to both Scotland and Northern Ireland. These include reserved matters – for example, duties relating to the operation in Northern Ireland of officers from the National Crime Agency and the Ministry of Defence Police – for which consent is not required. The Explanatory Memorandum to the Bill notes however that there are also a number of provisions relating to matters which fall within the legislative competence of the Northern Ireland Assembly. These are:
- Extraction of information from mobile devices;
- Overseas production orders;
- Special procedure for access to material relating to human remains;
- Course offered as alternative to prosecutions: fees etc; and
- Enforcement of orders in another part of the United Kingdom
- Consent from the Assembly will therefore be required to extend these provisions to Northern Ireland.
- In addition, an amendment to the Bill tabled by the Home Office will bring electronic money and payment institutions within the scope of the Proceeds of Crime Act 2002 (POCA) account freezing and forfeiture powers in respect of Northern Ireland for which consent will also be required.
- The Executive did not agree to the inclusion of provisions relating to the extraction of information from mobile devices in a Legislative Consent Motion (LCM) but may return to this issue when the Code of Practice relating to the provisions has been drafted and consulted on. The Home Office has therefore been asked to consider amending the commencement provisions in the Bill to facilitate the implementation of this measure in Northern Ireland later should it be reconsidered by the Executive.
- The Legislative Consent Memorandum laid by the Department of Justice on 12 October 2021 seeks the Assembly’s consent in respect of the provisions which are set out below. The Memorandum states that “given that the Bill has already been introduced in the UK Parliament, powers relate to legislation that applies across the UK, and the time constraints in the current mandate, it would prove more practical to bring these provisions into operation via the Westminster Bill and ensure parity with the rest of the UK.”
Amendments to the Crime (Overseas Productions Order) Act 2019
- The Crime (Overseas Productions Order) Act 2019 (COPO Act) is a UK-wide Act which provides law enforcement and criminal justice agencies the power to apply for and obtain electronic data extra-territorially where there is an agreement in place between the UK and the country where the subject of the order is located, which may be used in the course of a criminal investigation or prosecution. The Act includes excepted, reserved and devolved provisions.
- A number of practical issues had arisen during implementation of the provisions of the Act which will be addressed through the Police, Crime, Sentencing and Courts Bill. These are:
Ancillary or Connected Communication Data
The Act will be amended to allow appropriate officers to access and obtain communications data that is associated with the content data that is the subject of the request.
Serving Overseas Productions Orders
Currently, overseas production orders (OPO) are required to be served by the Secretary of State (for England, Wales and Northern Ireland), or by the Lord Advocate (for Scotland). It is considered that the service of orders is best placed with a secure outlet, with the National Technical Assistance Centre being identified as the best place to securely transmit and receive such data. The Bill will therefore provide the flexibility for an appropriate body to serve the orders on behalf of the UK.
Rectifying a Consequential Amendment
An amendment is required to include reference to the relevant evidence test as part of the provision in the Act for a judge not to specify or describe any electronic data that, wholly or in part, does not fulfil all required data related tests. This relates to an amendment to the COPO Act which provided that a judge must be satisfied that the electronic data requested is likely to be relevant evidence before approving the OPO.
Scottish Sexual Harm Prevention Orders and Sexual Risk Orders
- The Bill will provide for cross jurisdictional enforcement of Sexual Harm Prevention Orders (SHPO) and Sexual Risk Orders (SRO), which are Preventative Orders for the management of sexual offenders or those whose behaviour indicates a risk of sexual harm that were provided for in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The Bill will also include provisions to allow all UK jurisdictions to amend each other’s Orders, which will enable effective management of sex offenders who move from one jurisdiction to another.
National Driver Offender Retraining Scheme
- The Bill will include provisions to provide a clear statutory authority for charging for courses that may be offered as an alternative to prosecution for certain fixed penalty offences, which reflects current practice. It will also provide for surplus fees to be used for the purpose of promoting road safety.
Material relating to the location of human remains
- These provisions will provide powers for the police in England and Wales to apply to the courts for an order to access special procedure material that may relate to the location of human remains. This will allow officers to apply for a search warrant or production order to obtain access to and seize material and information that may indicate the location of a deceased person’s remains without the need for it to count as evidence in the investigation of a criminal offence, as currently required when applying for search warrants.
- While the provisions apply only to the police in England and Wales, they mirror existing provisions for obtaining search warrants and production orders within the Police and Criminal Evidence Act 1984 (PACE). They ensure that a warrant or order issued by a court in England and Wales under these powers and endorsed by a court in Northern Ireland may be executed in Northern Ireland (and vice versa).
Amendment to the Proceeds of Crime Act 2002
- The amendment tabled by the Home Office will bring electronic money institutions (such as Revolut) and electronic payment institutions (such as PayPal) within the scope of the POCA account freezing and forfeiture powers in respect of Northern Ireland. This will ensure that law enforcement is able to quickly and efficiently freeze and forfeit the proceeds of crime and terrorist property not just held in bank and building society accounts but also when in e-money and e-payment institution accounts.
- The Department of Justice initially wrote to the Committee on 8 January 2021 setting out details of provisions expected to be included in a forthcoming Bill (known at that time as the Protection of the Police and Public, Courts and Sentencing Bill) for which legislative consent would be required from the Assembly. These related to the practical issues which had arisen from the implementation of the COPO Act including ancillary or connected communications data and the serving of overseas production orders; SHPOs and SROs; and the National Driver Offender Retraining Scheme (NDORS).
- Departmental officials attended the meeting of the Committee on 14 January 2021 to provide an oral briefing on these provisions and answer Members’ questions. Following the briefing, the Committee agreed to note the information provided and to consider the matter further when the Bill was available and the Executive had reached a position on the proposal to extend the provisions to Northern Ireland by way of a LCM.
- The Department wrote to the Committee on 26 January 2021 to confirm that the Executive had agreed the proposal to bring forward the LCM. The Department advised of a delay in the introduction of the Bill (now known as the Police, Crime, Sentencing and Courts (PCSC) Bill) at Westminster and undertook to keep the Committee informed of progress.
- The correspondence also provided further information on some of the issues discussed during the oral briefing on 14 January. In respect of queries regarding NDORS, the Department advised that, subject to discussions with the Department of Finance, it expected that opportunities to bid for funding to support local road safety initiatives would be available. Policing and Community Safety Partnerships (PCSPs) and others may be able to apply for funding for projects aligned with the aims of the Safety Camera Scheme to make Northern Ireland’s roads safer.
- The Department also informed the Committee of another provision expected to be included in the Bill for which consent would be required which provides powers for the police in England and Wales to apply to the courts for an order to access special procedure material that may relate to the location of human remains. The Committee noted the correspondence at its meeting on 4 February 2021.
- Further correspondence was received from the Department on 17 February and 1 March 2021 advising of additional provisions requiring consent which related to powers to extract information from mobile devices. The Department advised the provisions were to address a recommendation by the Information Commissioner’s Office (ICO) in June 2020 that the legislative framework should be strengthened to ensure clarity for victims, witnesses and offenders to address inconsistencies between forces and clarify the lawful basis for data extraction. The provision would create a clear statutory basis for police and other authorities to extract information from digital devices where the device user (most likely to be a victim or witness) agrees to give it to the police and agrees that data can be extracted from it. The Department advised that the provision would be supported by a Code of Practice which will provide guidance to authorised persons on how to obtain agreement, the information to be given to the device user and how to ensure the required standards of necessity and proportionality are met before using the power.
- The additional information was considered by the Committee at its meeting on 4 March 2021. The Committee agreed to seek the views of the Attorney General for Northern Ireland (AGNI), the Northern Ireland Human Rights Commission (NIHRC) and the Northern Ireland Commissioner for Children and Young People (NICCY) on the provisions to be included in the LCM including their compatibility with the European Convention on Human Rights (ECHR).
- Along with its response of 7 April 2021, the NIHRC provided a copy of a submission made to the Department of Justice in March 2021 which included a number of recommendations with regard to the extraction of data from electronic devices. In its response of 8 April, the Attorney General noted that Section 6 of the Human Rights Act 1998, which provides that it is unlawful to act in a way which is incompatible with rights drawn from the ECHR, is relevant to the exercise of powers under a number of provisions to be included the Bill and cited an example regarding the extraction of data from a mobile device. The provision relating to the extraction of data from a mobile device is however not considered any further in this report as the Committee was subsequently advised in correspondence from the Department on 16 June 2021 that the Executive had not agreed to the inclusion of the provisions relating to data extraction from mobile devices in the LCM, but may return to this matter when the Code of Practice has been drafted and consulted on. The Committee will therefore continue to pursue this matter separately with the Department of Justice, the NIHRC and other relevant stakeholders as necessary.
- The NIHRC also stated in its response that amendments to Section 3 of the COPO Act regarding communications data impact on the rights to privacy and freedom of expression and advised that further safeguards would be required to ensure that the acquisition of such data does not violate Article 8 and 10 of the ECHR. The NIHRC suggested a number of other issues that the Committee may wish to seek more information on including who would be a “prescribed person” allowed to serve OPOs and how individuals subject to SHPOs and SROs would be identified when moving between jurisdictions. It also recommended that the costs of fees for driving courses instead of fixed penalties for low level driving offences should not be prohibitive to ensure equal access for all and that any changes in policy relating to the cost of course alternatives should be accompanied by a Section 75 equality impact assessment.
- The NIHRC also pointed out that there may be specific issues relating to the impact of the provisions relating to the recovery of human remains in Northern Ireland and suggested that the Committee may wish to consult the Independent Commission for the Location of Victims’ Remains (ICLVR) for its views on the potential implications of the provisions on its ongoing work.
- The responses from the NIHRC and the Attorney General for Northern Ireland were considered at the meeting on 15 April 2021 when the Committee also noted that the NICCY did not intend to provide a response on these issues. The Committee agreed to forward both responses to the Department of Justice for comments on the issues raised. The Committee also agreed to request the views of the ICLVR on the proposed provisions relating to the location of human remains including the potential implications on its ongoing work.
- The ICLVR responded to advise that it is an implementation body and that legislation and policies underlying it are fundamentally a matter for the Irish and UK Governments. It suggested that it may be better to take the views of the Department of Justice (Ireland) and the Northern Ireland Office (NIO), who drew up the legislation in their respective jurisdictions. The Committee therefore agreed on 27 May 2021 to ask the Department of Justice for details of any engagement either it or the Home Office had with the NIO and the Department of Justice (Ireland) on the powers to seize evidence relating to the location of human remains outside of a criminal investigation provided for in the PCSP Bill including the potential implications on the work of the ICLVR and whether there was a possibility of overlap in jurisdiction.
- The Committee also considered, at the meeting on 27 May 2021, the Department’s response dated 18 May to the issues raised by the AGNI and the NIHRC, which included comments from the Home Office where appropriate. With regard to the proposed amendments to the COPO Act, the Home Office advised that the Act does not provide for access to any electronic data which is not already available, for example by Mutual Legal Assistance, and contains robust tests and safeguards governing the application, making and serving of a UK court approved OPO. The proposed amendment to the Act is limited to rectifying an unintended consequence and allow a UK court approved OPO to be sought by specified appropriate officers to obtain the content of the communication and only communications data that is “comprised in, included as part of, attached to or logically associated with electronic data” from a service provider located outside the UK where a relevant international cooperation agreement is in place. The Department also advised that tasks related to the service of an OPO may be delegated by the Secretary of State or Lord Advocate to an appropriate body (“prescribed person”) to allow necessary operational agility and effectiveness in the OPO process and that the Bill will extend judicial oversight provision in the COPO Act.
- The Department stated that the recommendations made by the NIHRC in respect of speeding courses as an alternative to prosecution had been accepted and shared with the Northern Ireland Policing Board (NIPB) and the Police Service of Northern Ireland (PSNI). In respect of SHPOs and SROs, the Department advised that the proposals in the Bill seek to enable the UK-wide enforcement and manageability of all civil prevention orders for sex offenders across UK jurisdictions.
- The Committee agreed to forward the Department’s response to the NIHRC for any further views and comments it may wish to make.
- The Committee considered the NIHRC’s response dated 21 June at its meeting on 24 June 2021. The Commission drew attention to matters it did not consider had been fully addressed in the Department’s response including judicial oversight and monitoring arrangements in respect of the COPO Act provisions and the practical application of SHPOs and SROs.
- At the same meeting, the Committee also considered the Department’s response dated 17 June 2021 in which it indicated that the Home Office had not engaged with the NIO or the Department of Justice (Ireland) but was of the view that the draft provisions relating to the location of human remains do not impede or undermine the work of the ICLVR. The Committee agreed to ask the Department for the information on which the Home Office had based this view and to request a full response to the issues that, in the view of the NIHRC, had not been addressed in the Department’s previous response. The Committee also asked for clarification of oversight arrangements for the provisions relating to COPO and whether similar independent oversight will be put in place for future agreements; confirmation that the Department will engage further with the NIHRC on the Commission’s recommendations relating to NDORS; further information on the practical monitoring arrangements for SHPOs and SROs; and confirmation that the provisions to be included in the LCM were only those outlined in the Department’s letter of 16 June 2021.
- The Department’s response was considered at the meeting on 10 September 2021. The Department confirmed that the Home Office had contacted the ICVLR which advised that it is content that the proposals in the Bill relating to the location of human remains do not have any adverse effects on the Commission or its endeavours.
- With regard to the oversight and monitoring arrangements for the COPO Act, the Department stated that the Home Office had advised that the legal tests and conditions required for approving an OPO are set out in the COPO Act. A Crown Court judge must be satisfied that the electronic data sought is likely to be of relevant evidence in respect of the indictable offence in an application for an OPO. The Crown Court Rules relevant to this judicial consideration also provide for applications to vary or revoke orders. The Department also stated that the Investigatory Powers Commissioner has been given oversight of any activity under COPO Act where it falls within their remit in relation to the UK-US Data Access Agreement designated under that Act and that similar oversight will be considered for future international cooperation agreements as and when they are agreed.
The Department also confirmed that, as recommended by NIHRC, it will complete a Section 75 screening exercise in the preparation of secondary legislation relating to speeding courses as an alternative to prosecution and will consult relevant stakeholders as part of that process, including the NIHRC.
In relation to SPHOs and SROs, the Department advised that effective risk management processes agreed between police forces and probation services across the UK are already in place and that no new systems to identify and manage offenders moving between jurisdictions are required. The Department stated that the current systems are compliant with international human rights standards.
- The Committee agreed to forward the Department’s response to the NIHRC for information and any further comments it may wish to make.
- In its response, the Department had also advised the Committee of a further provision that may be included in the LCM relating to the use of audio and visual links in criminal proceedings which would require Executive approval. The Committee agreed to request further information from the Department on this, including who had proposed its inclusion in the LCM and what impact the need to seek Executive approval might have on the timescale for the LCM. The Committee also asked for more detailed information on the risk management processes agreed between police and probation services which are already in place for the management of sex offenders who move between jurisdictions.
The Department responded on 16 September 2021 providing information on the management of sex offenders, the framework for which is provided by the Public Protection Arrangements for Northern Ireland (PPANI). The Department also advised that it was no longer proposing to include the additional provision on the use of audio and visual links in criminal proceedings in the LCM. Instead, provisions in the Coronavirus Act 2020 can be used to allow the extension of the powers for the courts to utilise remote hearings until primary legislation can be taken forward locally. The Committee is continuing to follow up on this issue separately with the Department.
- In its further response of 28 September 2021, the NIHRC urged the Committee to protect the monitoring and review of oversight functions and advised that it had no comments to add on the Department’s points in relation to NDORS, the management of sex offenders and amendments to COPO. The Committee noted the NIHRC response at its meeting on 30 September 2021.
- As noted previously in this report, the Department wrote to the Committee on 16 June 2021 advising of the provisions agreed by the Executive for inclusion in the LCM which was considered by the Committee at its meeting on 24 June 2021. In addition to those provisions already under detailed consideration by the Committee, the Department advised that an amendment would be made by the Home Office to bring electronic money institutions (such as Revolut) and electronic payment institutions (such as PayPal) within the scope of the POCA account freezing and forfeiture powers in respect of Northern Ireland.
- The Committee had been pursuing this issue separately since 18 March 2021 when it noted correspondence from the Minister of Justice advising of a request from the Economic Secretary to the Treasury on 8 February 2021 to consider legislative consent for a Clause in the Financial Services Bill. The purpose of the provision is to ensure that law enforcement is able to quickly and efficiently freeze and forfeit the proceeds of crime and terrorist property held not just in bank and building societies but also when in e-money and e-payment institution accounts. The Minister had indicated to the Economic Secretary to the Treasury that it would not be feasible for an LCM to proceed within the short timescale provided. The UK Government therefore tabled an amendment to the Bill so that the provision currently does not extend to Northern Ireland. The Committee requested further information from the Department of Justice on the potential consequences for Northern Ireland of not being included in the provisions and clarification of whether crypto-currency is covered by the provision. The Committee also wrote to the NIPB to request information on the implications for the powers of the PSNI and the risks associated with the provision not extending to Northern Ireland.
On 26 March 2021 the Minister laid a Memorandum in the Assembly in accordance with Standing Order 42A (4) (b) explaining why a LCM was not being sought for the Financial Services Bill and this was noted by the Committee at the meeting on 15 April 2021.
- In its response, the NIPB pointed out that, without the extension of these powers, the PSNI would be at a disadvantage compared to other police services in the UK and will be required to use existing restraint and confiscation powers. These can take some time and are resource intensive for the PSNI, the Public Prosecution Service and the Courts. The response also highlighted that the PSNI can only obtain orders based on the legislation available to the PSNI, regardless of where the respondent institution is based. It is therefore likely that similar investigations regarding funds by similar suspects – one resident in Northern Ireland and one resident in England – would be treated very differently with the Northern Ireland investigation taking longer and using far greater resources. It also noted that, with regard to referral of electronic money institution cases to a police service in GB, although POCA is intended to have effect UK-wide, the location of a suspect in Northern Ireland may prove problematic if a case proceeds through the courts and the willingness of a police service in GB to do this routinely is another matter that would require negotiation.
- In its response, the Department confirmed that crypto currency is not subject to the provisions introduced by the Financial Services Bill and that freezing and forfeiture powers come under POCA. Crypto currencies have been made subject to criminal restraint orders under POCA, which have the effect of freezing property that may be liable to confiscation following a trial and the making of a confiscation order.
- The Department also advised that consideration had been given as to the potential options for extending the provisions in the Financial Services Bill to Northern Ireland. Given that the underlying criminality and offences connected with the money in these type of accounts could fall into the reserved, excepted or devolved sphere, the preferred option to extend the provisions was by way of a UK Government Bill with a LCM. The Minister had therefore written to the Home Secretary to ask for her support to identify a suitable legislative vehicle as soon as practicable.
- Having considered the responses from both the NIPB and the Department at the meeting on 10 June 2021, the Committee agreed to ask the Department for an update on its engagement with the Home Office to identify a suitable Bill in which to extend the relevant provisions in the UK Financial Services Bill to Northern Ireland. The Committee was therefore content to note the proposal in the correspondence of 16 June to include these provisions in the LCM for the Police, Crime, Sentencing and Courts Bill.
- Following consideration of the Legislative Consent Memorandum laid on 12 October 2021, the Committee for Justice agreed to support the Minister of Justice in seeking the Assembly’s endorsement of the Legislative Consent Motion
“That this Assembly agrees to the extension to Northern Ireland of a number of provisions within the Police, Crime, Sentencing and Courts Bill relating to the Crime (Overseas Production Orders) Act, the management of sex offenders, the National Driver Offender Retraining Scheme (NDORS), application of S29 of the Petty Sessions (Ireland) Act 1851 to the provisions in the Bill enabling a judge in England and Wales to make an order authorising the police to obtain information about the location of human remains outside of a criminal investigation, and the application of an amendment to the Proceeds of Crime Act 2002 to Northern Ireland to bring electronic money and payment institutions within the scope of account freezing and asset forfeiture powers in Northern Ireland.”
4 November 2021 (to be published)
Date of Meeting
Link to Minutes of Evidence
14 January 2021
8 January 2021
26 January 2021
12 March 2021
16 April 2021
18 May 2021
16 June 2021
17 June 2021
17 August 2021
16 September 2021
7 April 2021
8 April 2021
13 May 2021
21 June 2021
28 September 2021
 With effect from 2 August 2021, Ms Sinéad Ennis replaced Ms Linda Dillon as Deputy Chairperson