The Northern Ireland Office (NIO) issued the document “Consultation on paragraph 8.78 of the exercise of powers in the Justice and Security (Northern Ireland) Act 2007 Code of Practice” for consultation between November-December 2014. The NIO is only consulting on one paragraph of its Code of Practice, namely paragraph 8.78 which currently reads:
A record of the stop will be made electronically by the officer. A unique reference number and guidance on how to obtain a full copy of the record must be provided to the person searched. If for any reason an electronic record cannot be made or a unique reference number cannot be provided at the time, guidance must still be given to the person searched.
The consultation is prompted by a successful legal challenge in May 2014 brought by Emmet McAreavey relating to this provision of the code of practice. CAJ provided an affidavit in these proceedings in relation to our positions on, and engagement with the NIO over issues relating to the issuing of a Code of Practice covering the exercise of stop, question and search powers under the Justice and Security (Northern Ireland) Act 2007 (JSA 2007), and in particular the Code’s coverage of matters relating to record keeping. The proceedings related to the NIO consulting on a draft Code of Practice but then inserting the above detrimental provision in the final Code that conflicted what had actually been consulted on. It was this issue (which related to providing records to persons searched) which was found to be unlawful, in the context of a ‘fundamental change’ not having been consulted on that the present consultation seeks to address.