Overview
36.The Act has 16 sections and 4 Schedules.
37.Sections 1 to 5 and Schedule 1 relate to sex offender notification and make changes to Part 2 of the Sexual Offences Act 2003 (“the 2003 Act”). The principle aim of these sections is to increase public safety whilst complying with the human rights of offenders subject to notification requirements for sexual offences. The sections and Schedule—
provide for a mechanism to review indefinite notification requirements;
require offenders to notify the police if they intend to leave their home address to travel within the UK;
end notification requirements for acts which are no longer criminal offences;
ensure relevant sexual offenders coming to Northern Ireland with convictions from countries outside the United Kingdom are subject to the notification requirements; and
increase the scope of sexual offences prevention orders to allow courts to order offenders to take positive actions as well as place restrictions on their behaviour.
38.Sections 6 and 7 create new human trafficking offences. Section 6 amends the 2003 Act to create an offence in Northern Ireland of trafficking for the purposes of sexual exploitation which takes place wholly outside the UK. Section 7 amends the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) to allow prosecution for trafficking someone for exploitation anywhere outside the UK, and to ensure that an offence will have been committed where a person who has not previously been trafficked into the United Kingdom is trafficked within the United Kingdom for the purposes of labour or other non-sexual exploitation. The creation of these offences ensures that the legislative framework to tackle human trafficking in Northern Ireland complies with the requirements of the EU Directive.
39.Section 8 amends the 2003 Act and the 2004 Act to remove the existing provision for summary conviction of human trafficking offences in order to make human trafficking offences triable on indictment only.
40.Section 9 and Schedules 2 and 3 insert into PACENI the new retention framework for fingerprints and samples, etc. and make consequential amendments. The key proposals are as follows.
Non-convicted persons
Immediate destruction of fingerprints and DNA profile from persons—
arrested for or charged with, but not convicted of, a minor offence; or
arrested for, but not charged with, a serious offence (unless prescribed circumstances apply).
Retention of fingerprints and DNA profile from persons—
arrested for, but not charged with, a serious offence (if prescribed circumstances apply); or
charged with, but not convicted of, a serious offence,
for a period of three years, with an extension of two years available on application to the courts.
Convicted adults
Indefinite retention of fingerprints and DNA profiles for all adults convicted of or cautioned for a recordable offence
Convicted under-18s
On first conviction for a minor offence, retention of fingerprints and DNA profiles for—
five years, if the sentence is non-custodial; or
five years plus length of sentence (if given a custodial sentence of less than five years).
Indefinite retention of fingerprints and DNA profiles—
where a custodial sentence of five years or more is imposed;
on conviction for a serious offence; or
on a second conviction.
Diversionary disposals
On a caution for a recordable offence committed while under the age of 18, or on completion of a diversionary youth conference, retention of material for five years.
On a penalty notice issued pursuant to an arrest for a recordable offence, retention of material for two years.
DNA samples
Destruction of all DNA samples taken from persons on arrest, whether the individual goes on to be convicted or not. Samples to be retained for only as long as necessary to create a DNA profile and, in any event, for no longer than six months, with an exception for temporary retention where the sample is likely to be needed in proceedings.
Statutory grounds for early deletion
Statutory requirement for Chief Constable to destroy fingerprints and DNA in cases where the taking of the samples was unlawful or the arrest of the person was unlawful or based on mistaken identity, with an exception for temporary retention where the material has evidential value, subject to its admittance by a court.
Searches
Relevant databases to be searched for a match against all fingerprints and DNA before destruction.
Biometric Commissioner
Cases involving prescribed circumstances to require independent approval.
41.Section 10 removes the power of the Minister of Justice to determine matters relating to the release, setting of licence conditions and recall to custody for a child subject to determinate detention orders and, instead, provide for these to be determined by the sentencing court and the Parole Commissioners for Northern Ireland.
42.Section 11 provides that a statutory notice must be issued before a court can give an intermediary direction and also provides for the withdrawal of that notice.
43.Section 12 abolishes the common law offence of scandalising the judiciary as a form of contempt of court.
44.Section 13 provides for magistrates’ courts to deal with criminal business for a time-limited period on Sundays in exceptional circumstances. It allows the Department to make an order disapplying section 7 of the Sunday Observance Act (Ireland) 1695 for a one month period (or further such periods if exceptional circumstances re-arise) subject to a series of requirements. If the Chief Constable makes a request to the Department for disapplication, the Department must consult with the Lord Chief Justice, and conclude that exceptional circumstances exist. Any order to be made must also have the approval of the First Minister and deputy First Minister acting jointly.
45.Section 14 and Schedule 4 make repeals.