Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) (Northern Ireland) Order 2020

Motion to Approve

Moved by

That the draft Order laid before the House on 8 June be approved.

My Lords, this order puts into practice a revised code of practice governing the recording with sound of interviews of persons detained at a police station in Northern Ireland under Section 41 of, or Schedule 7 to, the Terrorism Act 2000. A copy of the draft revised code of practice was laid before Parliament on 8 June 2020.

The purpose of this code of practice is to provide protection to both the person being interviewed and the officers conducting the interview. I start by thanking the Police Service of Northern Ireland for the vital work that it carries out on a daily basis to keep communities across Northern Ireland safe. The threat level from Northern Ireland-related terrorism remains “severe”. Despite this, ongoing work by police and MI5 means that most people in Northern Ireland are not directly affected by the “severe” terrorist threat.

However, I assure noble Lords that these proposed revisions will not change the way interviews are conducted in any way and, instead, relate to how interviews are recorded and how the recordings are stored. The changes will allow the Police Service of Northern Ireland to start using digital recording technology in line with the practice commonly adopted in England, Wales and Scotland. The changes to this code of practice will impact how the interviews are recorded and how the recordings are stored. They will apply only to interviews that take place after the updated code of practice has been brought into force. I will now outline the main revisions.

First, the code has been amended to allow the Police Service of Northern Ireland to use modern digital recording technology. Your Lordships may not believe it, but the current Police Service of Northern Ireland recording capability for Terrorism Act interviews is by cassette tape, a now rather archaic method which emerged back in the 1960s. It is an understatement to say that this equipment is difficult to source due to the rise of digital technology, and that is why it is important to maximise this opportunity to allow updated recording media or a secure digital network to be used instead, thereby bringing Northern Ireland into line with technology used in the rest of the UK. It is worth noting that the Police Service of Northern Ireland already possesses the necessary technology and utilises it for other, non-Terrorism Act, interviews.

My Lords I thank the noble Viscount, Lord Younger, for his reassuring explanation and for his courtesy as a Minister, and I am more than happy to support this order.

In your Lordships’ House on Wednesday, I raised again the issue of the refusal—not the failure but the refusal—of the Northern Ireland Executive to fulfil their legal and moral obligations to implement the 2019 legislation to provide for modest payments for those terribly injured through no fault of their own during the Troubles in Northern Ireland.

Two years ago, some of these victims came to Westminster with the WAVE Injured Group because for 10 years they had got little more than tea and sympathy from Stormont. One made a particular impression on me. Paddy Cassidy was 28 when 50 years ago, a random gun attack by loyalist terrorists near his north Belfast home left him with severe spinal injuries. He spent a year in a wheelchair and later could walk only with the aid of calipers and crutches. When I met him he was in constant pain, and it was clear that coming from Belfast to London was a huge and draining effort for him. The fear that more than one of the WAVE Injured Group expressed to me on that occasion was that some of them would die before the pension they had been campaigning for for years came through. On Monday 22 June, exactly that happened to Paddy Cassidy. The Northern Ireland (Executive Formation etc) Act 2019, enacted by this Parliament and initiated in this House, required claims to be assessed and payments to be made from 29 May. Paddy Cassidy died a month later.

It is now getting towards two months’ delay. How many more among the hundreds of terribly injured victims eligible will also have to die before the Secretary of State sorts this out with the First and Deputy First Ministers and the law is implemented? I will keep asking until justice prevails. We owe it to Patricia, Paddy’s widow, to his sons Edward and Michael and to his daughter Patricia. We owe it to the memory of Paddy Cassidy. May he rest in peace.

My Lords, I express my support for the campaign of the noble Lord, Lord Hain, but I will not follow him on the particulars that he has just given.

The introduction many years ago of video recordings of police interviews was a welcome step forward. There used to be many a wrangle about the validity of the written confession of an accused. I recall a case in Hong Kong, where my client contested a signed written confession on the basis that the detective chief inspector had stamped on his hand until he signed whatever had been written out for him. When I expressed some doubt, he drew my attention to a photocopy of the confession. His signature after the caution at the beginning was in firm characters, but the characters with which he signed at the end were so shaky as to be almost illegible. The court threw the alleged confession out.

Video recordings that were subsequently introduced of the “harshing” of prisoners in Iraq during interviews have led to the Ministry of Defence paying out millions to claimants, and the MoD has given undertakings that none of these video recordings will ever be destroyed, so that the significance can be appreciated. Video recordings protect not only the accused from brutality and fakery, they also protect the police interviewer from trumped-up allegations. I am sure that that has led to a great diminution in these practices.

These regulations cover two important aspects: tampering and security. The first issue is dealt with by ensuring immediate access by the accused to a copy of the digital recording. This is well covered in the code of practice.

The second issue arises in the event that no charges are brought. Is the recording of an interview to remain for ever, if not in the cloud then on the secure system described by the Minister? Is there a time limit? When will it be destroyed or deleted? Paragraph 7.15 of the draft code of practice requires digital files to be stored in read-only format on non-removable storage devices to ensure their integrity; for example, on hard disk drives. Access is restricted under paragraph 7.16 to those who have been given specific permission to access them, or for

My Lords, I thank the noble Viscount, Lord Younger of Leckie, for his detailed explanation of this statutory instrument, which I fully support. For the avoidance of doubt, I have always believed that terrorism, whether in the 1970s, 1980s or 1990s, when I was growing up in Northern Ireland, is never right and is never justified. Every death, every bombing, every maiming and every mutilation was totally wrong and unjustified.

I would like to underpin what has just been said by the noble Lord, Lord Hain, about the victims’ pension scheme; like I did, he also referred to this two days ago, during another debate on a statutory instrument for Northern Ireland. This issue needs to be resolved by the Northern Ireland Executive. If they are incapable of coming to an agreement on the issue, the British Government will have to take it into their own hands, to ensure that those people who suffered immeasurable pain, injury and grief have the pension that they deserve.

The other issue I want to raise is this. I hope that relations will settle down in the Northern Ireland Executive so that we can start to see the full implementation of the Good Friday agreement, to develop a shared island of Ireland and to build relationships between Ireland and Britain. That is vitally important.

I have two questions relating to the statutory instrument. Can the Minister confirm whether the provisions of this statutory order have been enacted, given that due to the election in December last year there has been a time lapse?

The second issue is one that has been raised by the Northern Ireland Human Rights Commission, which submitted a response to the then Secretary of State, Julian Smith, on the issue of the interpreter. Not only was the interpreter tasked to deal with people who may have had speech impediments, there was also a need for one for people with limited ability in English, so that they could be perfectly understood.

My Lords, first, I declare an interest as set out in the register of interests. Perhaps I may say how strongly I support what has just been said by the noble Baroness, Lady Ritchie, about the condemnation of paramilitary terrorism in Northern Ireland. That is consistent with her position when she was the leader of the SDLP, and it is consistent today with most members of the SDLP in Northern Ireland, although sadly there are one or two exceptions. However, I am glad to say that the current leader of the SDLP, Mr Colum Eastwood MP, has roundly condemned any member of the party who is making excuses for paramilitary activity in Northern Ireland.

This statutory instrument arises from UK legislation, and replaces video recording with digital recording. As the Minister has said, it is a revised code of practice. I thank him for his presentation of the instrument, which will bring Northern Ireland into line with the rest of the United Kingdom.

However, several issues have occurred to me, the first of which is a constitutional one. Policing in Northern Ireland is once again a devolved matter. As the Minister has said, we have a Minister of Justice in the Northern Ireland Assembly and we have the Police Service of Northern Ireland. I would have thought that a procedure such as this would normally be dealt with by the Minister of Justice in Northern Ireland, but I assume that the reason it is being taken through this House—perhaps the Minister can clarify this—is that the original legislation was passed when the Northern Ireland Assembly was not in Session. It was therefore British legislation, and that is why this instrument is being taken through this House, rather than through the Northern Ireland Assembly.

The second point I want to mention is about the consultation procedure. We have nearly 2 million people in Northern Ireland. As everyone knows, policing is a very controversial and sensitive issue in Northern Ireland, yet out of those 2 million people, only six responded to the consultation. That truly is not a great example of the procedure. Indeed, it turns out that one of the six was the Police Service of Northern Ireland itself, so there were only five respondents. One would be interested to know who those five others are.

My Lords, hiding behind this ostensibly anodyne order, which has been so clearly explained by my noble friend the Minister, are some complicated and highly sensitive questions about our criminal justice system—questions about how we deal with terrorism and terrorism suspects; about the relationship between the police and the accused; about the gathering of evidence by the police and other agencies; about the presentation of evidence in court and open justice; and more generally about public confidence in our law enforcement agencies and the courts. All these questions are prompted whenever one has to manage the justice process that takes a suspected terrorist from arrest through detention to trial.

Although this order specifically relates to Northern Ireland, it makes a small but necessary change relating to the interviewing of suspects detained under Section 41 of and Schedule 7 to the Terrorism Act 2000. One might think that making provision for the use by the PSNI of digital recording technology now and for the remote monitoring of interviews in future was simple enough—and on one level it is, but interviewing terrorism suspects is not at all simple in so many regards.

That we are dealing with this on a Friday should not mislead us as to its importance. This order is connected to PACE, the Police and Criminal Evidence Act 1984, and to Code H. Code H is one of eight separate codes governing the way in which suspects in custody are to be interviewed by the police. PACE brought about a major improvement in the way people in custody are treated by the police and the law enforcement agencies after the Birmingham Six scandal. Code H is an 80-page document and has often been revised to reflect necessary changes in good practice.

Giving false accounts of police interviews, if not routine, was far too common before PACE. Now it is far less likely to happen. We can be far more confident that those found guilty of terrorism offences will have been convicted on evidence fairly and lawfully obtained by the police. We can tell whether statements made by the convicted person in interview were in fact made and recorded fairly and lawfully. They can be checked against the video and the sound recording.

My Lords, I welcome the statutory instrument before us today, which will bring Northern Ireland more closely in line with the existing legislative framework elsewhere in the United Kingdom. In particular I welcome the fact that the code is being changed to allow the Police Service of Northern Ireland to comprehensively update and streamline its current system by incorporating recent advances in digital technology.

The current model is clearly outdated. Video and audio evidence go hand in hand with accountability and transparency, both of which are key elements in increasing public confidence in front-line policing. With the ongoing use of body-worn camera footage in certain other cases, the PSNI already has in place the ability to significantly improve the quality and transparency of investigations. The police service therefore already possesses some of the relevant and necessary technology for aiding its investigations, but to date it has been able to utilise this technology only ever for non-Terrorism Act interviews. As a result, the police have been unable to use the full gamut of investigation tools at their disposal when responding to the spike in shootings, attacks and other paramilitary activity in Northern Ireland that we have regrettably witnessed in recent months.

I also welcome the inclusion in this statutory instrument of the PSNI recommendation relating to remote monitoring by a senior investigating officer in Terrorism Act investigations. Again, this brings Northern Ireland in line with the rest of the union. All these crucial changes are to be welcomed, as they not only strengthen the credibility of investigations but will protect police officers from potentially vexatious claims. Can the Minister confirm whether there is a timeline for the training of officers to prevent potential litigation?

Key among the changes will be the maintenance and secure storage of future interviews and of older-format versions of historical interviews. The introduction of a more secure digital network will provide for the comprehensive sorting of all interviews, recording files on a secure server. During this process we must be mindful of protecting and ensuring the integrity of pre-existing recordings when digitising older formats, particularly in the case of Troubles-related terrorist activities. Can the Minister confirm whether discussions have taken place with the Northern Ireland Executive and the PSNI in relation to the cost implications of these changes? Will the Treasury assist and provide resources for their implementation? I am pleased to support this statutory instrument.

My Lords, I too thank my noble friend the Minister for his clear explanation of this instrument and broadly welcome it. Frankly, it is a bit of a shame that the police in Northern Ireland have had to rely on VHS tapes and outdated technology. It also saddens me that this matter could not have been dealt with more from within Northern Ireland, for all the reasons that other Members have spoken about.

I will focus primarily on the technological side, an area I declare certain interests in more broadly. Having sat in on a case at the Old Bailey in which the poor use of technology—or the lack of the right evidence gathered in the right way using technology—led to the collapse of a drug-dealing case, I am well aware of the challenges that can arise from both the poor use and misuse of technology.

I have some questions for the Minister, first—to echo a previous speaker—on the training that will be provided on all this, both in the interview room and afterwards. On the use of the data, I am keen to know the ethical guidelines being adhered to. We now know that as crime and terrorism become more technologically advanced, there are increasing risks around hacking and the failure of encryption, which may be only a few years away because of the computing power that is now available and soon will be available. That will potentially lead to fake evidence being created, evidence being stolen or doctored or, possibly worse, profiles being generated of suspects that track their movement in the room or their facial expressions and emotions. That could be used for positive policing but could also be against people’s rights. What guidelines are being adhered to? The previous speaker mentioned vagaries around the use of the data, which for various terrorism-prevention reasons could be used along some of the lines I have described.

The security of the data is also very important, and I would like to ask a final question—if the Minister does not have time to answer, a letter would be fine—around the use of blockchain and ledger technologies to watermark the videos, so that they could not be doctored because each would have a unique online identity. It is time we moved not just from VHS to recording in digital form, but actually kept pace with technology a step further. I would like to hear the Minister’s thoughts on this.