Criminal Justice Bill

agendaNi examines the Criminal Justice Bill, which updates the law on sex offender notification and DNA profiles and toughens it against human trafficking.

The Criminal Justice Bill seeks to update legislation in Northern Ireland to comply with the European Convention on Human Rights and the EU Directive on preventing and combating trafficking in human beings and protecting its victims.

It will do three things:

• change the law on sex offender notification;

• introduce new offences to prevent and combat human trafficking and protect its victims; and

• establish a new legislative framework for fingerprints and DNA profiles.

The Bill passed its second stage on 3 July. MLAs agreed on its aims to increase public protection, combat human trafficking and delete over 23,000 profiles of people who were not convicted from the Northern Ireland DNA database. However some MLAs argued that the human trafficking provisions do not go far enough to combat the ‘modern-day slavery’ that is prevalent in the province.

On the review of the indefinite notification requirements on sex offenders, the Minister assured the Assembly that “no offender who continues to pose a risk which justifies notification will find that their application to have the requirements lifted has been successful.”

It is “both a sad and shocking reality that people are trafficked into and through Northern Ireland for sexual and labour exploitation,” he added. This “abhorrent” practice must be stamped out, members agreed.

The European Court of Human Rights has ruled that aspects of the current DNA retention legislation are in breach of Article 8 of the European Convention on Human Rights: the right to privacy and family life. The new framework for the retention of fingerprints and DNA profiles will therefore “strike the right balance between public protection and the rights of individuals,” according to Ford.

Justice Committee Chair Paul Givan was keen to ensure that the department does not take a “minimalist” approach to human trafficking.

Deputy Chair Raymond McCartney claimed that “DNA profiles are being kept because, sometime in the future, a person might commit an offence” and contended that this undermines the principle of the presumption of innocence.

Sex offenders

The Bill will:

1. review indefinite notification requirements on sex offenders;

2. end notification requirements for acts which are no longer criminal offences;

3. make sex offenders with convictions from European Economic Area (EEA) countries* subject to notification requirements without the need for police to make an application to the courts; and

4. include positive actions, not just restrictions, in a sexual offences prevention order.

* EU member states, Iceland, Norway, and Liechtenstein

The current law, set out in the Sexual Offences Act 2003 needs to be updated to reflect the April 2010 Supreme Court ruling that the indefinite period of notification required of sex offenders who have been sentenced to 30 months is incompatible with Article 8 of the European Convention.

Sex offenders will be allowed to apply to the police to clear the notification requirements after a period of 15 years from the date of release from prison, or eight years if they were under 18 years of age at the time of conviction. These are the same periods proposed across the UK.

At the moment, police must apply to a court for a notification order for sex offenders who come to Northern Ireland with convictions from countries outside the UK. The Bill seeks to make an offender from the EEA statutorily obliged to notify police of criminal convictions for sexual offences. This only applies to the EEA because the Attorney General felt that some people may have “unsafe convictions from states with poor human rights records and suspect justice systems.”

This was opposed by members of the Executive when Ford asked for approval to introduce the Bill therefore he has pledged to work with the Attorney General and the committee to allow for “a single, enhanced process for attaching notification.”

Human trafficking

Objectives:

1. make it an offence for British citizens and habitual residents of Northern Ireland to traffic a person outside the United Kingdom for sexual, labour or other exploitation; and

2. allow for the prosecution of a person who has trafficked someone anywhere outside the UK for labour or other exploitation.

In both cases, the maximum sentence for someone found guilty in the Crown court is 14 years’ imprisonment. Under the two new offences, a UK national who has trafficked someone anywhere outside the United Kingdom (e.g. from Mexico to Brazil) is guilty of an offence. In addition, an offence is committed where a United Kingdom resident, who has not previously been trafficked, is trafficked for labour or other exploitation within the UK e.g. from London to Belfast.

DUP MLA Maurice Morrow’s consultation on his own Human Trafficking and Exploitation Bill started on 21 August and ends on 18 October.  Following Sweden’s example, this would outlaw prostitution and is designed as a barrier to human trafficking.  The proposal has been welcomed by the Evangelical Alliance, which is calling for the penalty for sex with trafficking victims (currently a £1,000 fine) to brought into line with the law on rape i.e. prison and signing the sex offenders register.

Fingerprints and DNA profiling

The Bill will allow:

1. fingerprints and DNA data to only be retained for three years for a person charged but not convicted of a serious offence;

2. police to indefinitely keep biometric data from people convicted of an offence punishable by imprisonment or in the event of a second conviction;

3. data to be retained for between five and 10 years where the offender was under 18 years old and has not gone on to re-offend; and

4. data from any person arrested for a recordable offence to be subject to a search against the relevant databases.

The new framework will replace the blanket and indefinite nature of retention in the current law with one that differentiates between those convicted and those who are not, between serious and minor crime, and between adult and juvenile convictions.

Since 2001, the law has allowed the police to retain the fingerprints, DNA sample and profile of anyone arrested for a recordable offence, whether later convicted or not.