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Justice (Sex Offences and Trafficking

Justice Bill narrowed

In June 2021, a decision was taken to narrow the scope of a proposed Justice Bill in order to secure Executive agreement and progress important public protection provisions. agendaNi outlines the contents of the re-drafted Justice (Sex Offences and Trafficking Victims) Bill and proposed amendments.

Introduced to the Assembly on 5 July 2021, the Justice (Sexual Offences and Trafficking Victims) Bill was significantly shorter than originally intended by Justice Minister Naomi Long MLA, with elements of originally intended Bill dropped to secure its introduction.

The new Bill comprises only Parts 1 (Sexual Offences), 2 (Trafficking and Exploitation) and 5 (Prevention Orders) of the original Bill, a change Minister Naomi Long told the Assembly “was necessary to secure Executive agreement to its introduction and thus progress at least some of the important public protection provisions of the previous Bill in this mandate”.

However, the Department has indicated its intention to bring forward a number of amendments as the Bill progresses, for which the Minister has secured Executive agreement.

The Justice (Sexual Offences and Trafficking Victims) Bill has two key principles: to enhance public safety by implementing certain elements of the report of the Gillen review covering serious sexual offence cases and a review of the law on child sexual exploitation and sexual offences against children; and to improve services for victims of trafficking and exploitation.

An outline of the Bill’s contents is included in Figure 1.

A significant consequence of the narrowing of the previously proposed Bill is that important legislation, including that required to comply with court rulings, assist court recovery and speed up justice, and reduce the legal aid bill, will not proceed in the current mandate.

However, the Minister has outlined her intention to the Assembly to include a number of amendments to the Bill during its passage, namely:

a) a legislative fix to reinstate four amendments incorrectly removed into Schedule 2 of the Magistrates Courts Order 1981 to allow for the summary prosecution of these indictable offences under Article 45 of that Order;

b) abolition of the rough sex defence;

c) an extension to existing revenge porn provisions to include a threat of publication; and d) provisions to widen the scope and strengthen the current law on abuse of trust.

Furthermore, the Minister told the Assembly: “I expect the elements of my original Bill that I had to drop to secure this Bill’s introduction will feature in a new Miscellaneous Provisions Bill early in the next mandate if non-legislative solutions cannot be identified in the interim.”

The Consideration Stage is to be scheduled. Minister Long has previously outlined her intention to introduce the proposed amendments at consideration stage.

Figure 1

The Justice (Sex Offences and Trafficking Victims) Bill includes:

• Provisions arising from the Gillen review that are being progressed, which include; o exclusion of public from all serious sexual offence hearings; o anonymity for defendants pre-charge; o anonymity of complainants to continue after death; and o an increase in the penalty for breach of anonymity; • Provisions arising from the outcome of a review of the law on child sexual exploitation and sexual offences against children to; o replace legislative references to ‘child prostitution’ and ‘child pornography’; o include live streamed images in the definition of exploitation for sexual purposes; and o create a new offence of adults masquerading as children online. • Provisions to create a new offence of up skirting and down blousing; • Adjustments to include the offence of abduction of children in care to

Sexual Offences Prevention Order (SOPO) arrangements; • Adjustments to dis-apply time limits for complaints under Violent

Offences Prevention Order (VOPO) arrangements; and • Amendments to modern slavery provisions in the Northern Ireland

Human Trafficking Act to extend support to victims of slavery, servitude and forced or compulsory labour; and to remove the statutory requirement to produce an annual Modern Slavery Strategy.

Police Ombudsman seeks powers reform

The Department of Justice is consulting on the possibility of a dedicated Police Ombudsman Act, following a request to reform and broaden the Ombudsman’s powers.

The request comes after the publication of a fiveyear review report by the Ombudsman. The review formed part of a stocktake ordered by Justice Minister Naomi Long MLA upon taking up her post in 2020 to look at the arrangements for policing oversight and accountability in Northern Ireland.

The review also looked at the interfaces between the various oversight bodies and set out proposals on how the arrangements could be further strengthened. Alongside the stocktake, the Minister also received recommendations from the Police Ombudsman on proposed changes to the powers of her office.

In December 2021, the Department launched a consultation on a stocktake of policing oversight and accountability, along with recommendations made by the Police Ombudsman in her Five-Year Review. The Ombudsman is required to review the workings of the legislation relating to their powers every five years and provide a report to the Department. Three such reviews have taken place to date, but no recommendations have been acted on due to a lack of political consensus, meaning existing legislation dates from 1998, without substantive change.

Northern Ireland now sits unique to England and Scotland, where reforms to complaints arrangements have been introduced, including the establishment of a new Independent Office for Police Complaints.

A number of reforms to the complaints regimes in England and Wales, Scotland and the Republic of Ireland, which have already taken place, include: legislating for the ongoing practice of keeping complainant and other interested parties informed; changes to the definition of

Summary of key recommendations of reform requested by the Police Ombudsman:

• That the initial term of the Police Ombudsman should be reduced to a term of five years, and that the Police Ombudsman should be eligible for reappointment for a further term of up to five years; • In the public interest, any civilian staff operating directly in conjunction with police officers in the course of their policing functions should be brought within the remit of the Police Ombudsman for

Northern Ireland for the purposes of complaints against those personnel; • That the Police (NI) Act 1998 be amended to enable the Police Ombudsman to conduct mediation in appropriate circumstances, and that there be no requirement to investigate first; • That the Police Ombudsman should be specifically empowered by statute to compel the attendance for interview of both witness and suspect officers; • That the Police Ombudsman be given a power to compel retired or former police officers to submit to witness interview, and provide all relevant documentation to him, which is within their possession, custody, power, or control, when he is conducting investigations involving grave or exceptional matters; and • That Regulation 26 of the RUC (Conduct) Regulations 2000 and the RUC (Conduct) (Senior

Officers) Regulations 2000 be amended to provide a right to the Police Ombudsman to attend all hearings which take place following a Police Ombudsman investigation.

‘complaint’; powers of specified bodies to make ‘super-complaints’ where policing is significantly harming public interest; investigation of whistleblowing claims outside of an ongoing investigation from current or former officers about serving officers; and disciplinary arrangement for former members of police forces.

Among the request for reform of Police Ombudsman Marie Anderson’s powers, which includes a total of 26 recommendations, most likely to receive attention is a desire to compel retired officers to co-operate with her office. Former RUC and PSNI officers are currently not obliged to take part in ombudsman investigations, a significant challenge when considering the volume of work undertaken by the Ombudsman in relation to historical complaints.

A potential stumbling block in this regard, and a concern raised in the past, around the power to compel witnesses to cooperate, is that this power is not available to the PSNI. It has also been suggested that the impact may be disproportionate on retired officers, who may not have access to the same support as serving officers under investigation by the Ombudsman.

Another potentially controversial recommendation, which the Department has suggested “may not be capable of attracting sufficient consensus” at this time to enable legislative change include the holding of disciplinary proceedings in public where it is in the public interest, with those in opposition suggesting increased risks to an officer’s personal safety.

A further major reform request from the Ombudsman is for a wider role for her office in relation to disciplining officers found to be in the wrong. Currently, the Police Ombudsman can make recommendations to the PSNI, however the Ombudsman is not involved in the disciplinary process and the PSNI are not compelled to accept recommendations. This is in contrast to England and Wales, where the Independent Office for Police Complaints (IOPC) has more extensive powers, particularly in relation to disciplinary issues.

The Ombudsman recommends that: “Regulation 26 of the RUC (Conduct) Regulations 2000 and the RUC (Conduct) (Senior Officers) Regulations 2000 be amended to provide a right to the Police Ombudsman to attend all hearings which take place following a Police Ombudsman investigation.”

The consultation of the policing oversight stocktake and the Police Ombudsman’s FiveYear Review will run to 1 March 2022.

Online abuse and trolling

In May 2021, the UK Government published the draft Online Safety Bill in a bid to establish a new regulatory framework to tackle harmful content online provisions. When passed, the Bill will apply to Northern Ireland.

Speaking in a recent interview with agendaNi, Justice Minister Naomi Long MLA outlined her belief that the use of social media had become a “law of diminishing returns” for public representatives, given the levels of online abuse and trolling that are now prevalent across most platforms.

Long, on whose behalf the PSNI is currently pursuing a number of individuals in relation to online abuse, is conscious that the current levels of online abuse and trolling could act as a deterrent to young people, particularly women entering politics or public life.

However, while Long praised the work of the PSNI and their technical team in tracing abusive accounts and attempting to end some of the most egregious examples of online abuse, government in Northern Ireland has little power in creating laws to directly tackle the changing face of online abuse and trolling.

Following devolution, telecommunications was retained as a reserved policy area, meaning any decision on online offences and the regulation of the internet is a matter for the UK Government.

For context, Northern Ireland’s current legal framework follows the general principle that an act which is illegal offline is also illegal online. Various pieces of legislation, including the Malicious Communications (NI) Order 1988 and the Protection from Harassment (Northern Ireland) Order 1997, can be applied to some forms online abuse and trolling to prosecute criminal activity. In essence, the Northern Ireland

• if it is designated in secondary legislation as “primary priority content” that is harmful to children or “priority content” that is harmful to children or adults; • if a service provider has “reasonable grounds to believe that the nature of the content is such that there is a material risk of the content having, or indirectly having, a significant adverse physical or psychological impact” on a child or adult of “ordinary sensibilities”; and • if a service provider has “reasonable grounds to believe that there is a material risk” of the dissemination of the content “having a significant adverse physical or psychological impact” on a child or adult of “ordinary sensibilities”.

Executive can keep aspects of the criminal law under review to ensure appropriate action is taken to strengthen it where necessary.

In comparison, while telecommunications is also a reserved matter in Scotland, there are a number of existing offences which can address online abuse and trolling if the behaviour amounts to criminal activity, such as in relation to stalking as part of the Criminal Justice and Licensing (Scotland) Act 2010 and the improper use of a public electronic communications network, as part of the Communications Act 2003. In April 2021, the Scottish Government enacted a Hate Crime Bill following a 2018 independent review of hate crime legislation. The Bill did consider but did not include a public petition on abusive and threatening communication.

In the Republic of Ireland, the Government approved the integration of the Broadcasting (Amendment) Bill, 2019, into the Online Safety and Media Regulation Bill and the introduction of three further Heads of Bill in May 2021. The Bill introduces online safety codes to instruct how designated online service providers should address harmful online content, establishes an Online Safety Commissioner as a regulator and defines harmful online content. Provision is also made in the Bill for the addition of further categories of harmful online content in the future.

UK

In the UK, the introduction of the Internet Safety Green Paper in 2017 and the Online Harms White Paper in 2019 were precursors to the publication of the draft Online Harms Bill in May 2021, following several years of examination by the UK Government as to how the internet can become a safer place for users, through the application of rules and online behaviour.

The Law Commission’s work in recent years has examined the criminal law provisions that apply to individuals and not the liability of platforms.

On 12 May 2021, the Government published the Online Safety Bill, all provisions of which will apply across England, Wales, Scotland and Northern Ireland. The draft Bill would impose duties of care on providers of online content-sharing platforms and search services. Ofcom would enforce compliance and its powers would include being able to fine companies up to £18 million or 10 per cent of annual global turnover, whichever is higher, and have the power to block access to sites.

Part 2 of the draft Bill sets out the duties of care that would apply to providers of user-to-user and search services. All regulated services would have to take action to tackle ‘illegal content’ and ‘content that is harmful to children’. Category 1 regulated services would also have to address “content that is harmful to adults”.

Interestingly, the framework would not put any new limits on online anonymity. However, under the duty of care, companies would be expected to address anonymous online abuse that is illegal through ‘effective systems and processes’.

The UK Government has said it is working closely with devolved administrations on a number of areas where there us possible interaction with devolved competencies and has stressed that their legislation is not seeking to change the law in relation to offences in devolved regions but seeking to “clarify the responsibility of businesses to tackle this activity on their services”.

Northern Ireland Procurement Conference 2022

Thursday 24th March 2022 • Europa Hotel, Belfast

A new era for public procurement

In July 2021, Finance Minister Conor Murphy MLA announced a substantial change in public procurement policy that puts an emphasis on social value. From June 2022, social value must account for at least 10 per cent of the total award criteria for government tenders. Alongside the current Covid-19 pandemic and the impact of Brexit, this change in policy presents a new challenge to the procurement landscape which practitioners must ensure they keep up to date with and its implication for their organisation. This conference will examine what effective public procurement means for organisations in Northern Ireland via a high-level panel of local and visiting speakers.

Speakers include:

Sharon Smyth Chief Executive Construction and Procurement Delivery (CPD)

Linda O’Hare Interim Assistant Director Business Services Organisation

Lindsay Maguire Head of Engagement, Procurement Reform Cabinet Office

Ed Green, Programme Director, Procurement Reform, Cabinet Office

Hugh Carr Head of Strategic Procurement Scotland Excel Frances Meehan Assistant Director Pupil Services & Procurement Education Authority

Karen Rodgers Community Business Partner Team Manager Farrans Construction

Noleen Bohill Head of Commercial and Procurement Belfast City Council

Emma McEvoy Lecturer in Law Maynooth University and Board Member Irish Social Enterprise Network

Sponsorship opportunities available – an excellent platform to showcase services and expertise to a key audience

Discussion topics for 2022 include:

4 The changing legal framework for public procurement

4 Creating social value in procurement

4 Procurement across the health sector

4 Green procurement: Becoming more resource-efficient

4 Transforming public procurement in the UK

4 The impact of Covid-19

4 Supply chain resilience and innovation

4 Effective local government procurement

4 Procurement as a strategic and innovative function

4 Digital procurement transformation

4 Procurement across the education sector

4 Procurement to construct critical infrastructure

To register... Full programme available online

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