Offender Management Act 2007 (Commencement No. 6) Order 2013

Monday 22nd July 2013 Grand Committee

Considered in Grand Committee

17:35

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Offender Management Act 2007 (Commencement No. 6) Order 2013.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, Sections 28 and 29 of the Offender Management Act provide for the polygraph testing of sexual offenders. Specifically, they enable polygraph testing to be included as an additional licence condition for adult sexual offenders. The Act required the provisions to be piloted in specified areas before full implementation. Those pilots took place in eight probation trusts from January 2009 to March 2012. As I shall come to explain, the pilot was successful. The purpose of this order is to commence the provisions fully, to enable polygraph testing to be included as a licence condition for sexual offenders throughout England and Wales rather than just in the pilot areas.

As noble Lords may be aware, a polygraph is a device that indicates whether someone might be lying. More specifically, it measures changes in heartbeat, breathing rates and sweating. Changes in these activities can indicate whether an individual is telling the truth in response to a set of questions. The management of sexual offenders in the community is rightly a serious concern to the public. Having an objective assessment of how truthful or otherwise an offender is with his or her probation officer has the potential to make supervision more effective and hence might reduce the risk of further offending. The potential for polygraph testing as a tool for enhancing the effectiveness of the statutory supervision of sexual offenders was considered in the Home Office’s Review of the Protection of Children from Sex Offenders, published in 2007. That review recommended the piloting of polygraphy as a licence condition.

Following commencement of Sections 28 to 30, polygraph testing was piloted in the east and West Midlands from January 2009 to March 2012. In the pilots, adult sexual offenders released on licence into the pilot area had a condition to comply with polygraph testing included in their release licence. In these pilots, sexual offenders were polygraph tested during supervision to help assess whether they were complying with their licence conditions or their level of risk had changed. The polygraph was, of course, just one component of their supervision. Offenders were also subject to the usual supervision process, which includes regular reporting to a probation officer and may also include attendance on an accredited sex offender programme, help with substance misuse and assistance with accommodation or employment.

Polygraph testing was provided under a contract with the University of Newcastle. An independent evaluation study of the pilots was carried out by the University of Kent. The aim of the pilot was to find out whether polygraph testing was a useful additional tool for probation officers in their management of sex offenders in the community, who were on licence. In other words, the pilots set out to answer the question: is polygraph testing effective in helping to protect the public from serious harm?

The commencement order made under Section 41 defined the areas where the pilots would take place and their duration. The intention was that, on completion of the pilots, Parliament would consider their efficacy and whether polygraphy should be rolled out across the probation service in England and Wales. Any extension or expansion of the scheme may be made only with parliamentary approval. Now that the pilots are complete and have been evaluated, I am pleased to report that they were very successful.

I should, at this point, draw attention to a change in the explanatory memorandum provided to the Secondary Legislation Scrutiny Committee. The explanatory memorandum stated that 599 offenders from seven probation trusts were subject to mandatory polygraph testing during the pilot. Five hundred and ninety-nine offenders were tested across eight trusts during the entire lifetime of the pilots, which ran between January 2009 and March 2012, but the evaluation, which was conducted between April 2010 and December 2011, was based on the testing of 332 offenders in the pilot areas. In other words, testing started before the evaluation and continued afterwards, but only those tests undertaken during the period between April 2010 and December 2011 were used for the evaluation study. As the 599 figure was based on previously unpublished internal management information, officials advised that it would be more appropriate to use the publicly available evaluation data on 332 offenders, and the explanatory memorandum was amended accordingly. The evaluation is in no way diminished or affected by the changes to the original explanatory memorandum. The Minister for Prisons and Rehabilitation arranged for the original explanatory memorandum to be withdrawn and an amended version to be laid in its place. I know that the Minister has apologised to his colleagues in the other place and to the chairman of the Secondary Legislation Scrutiny Committee for this late change, and I should like to add my own apologies to noble Lords.

The evaluation is a robust study of the mandatory polygraph pilot. Outcomes for offenders who were subject to mandatory polygraph testing were compared with a similar group of offenders who were supervised in other probation areas where they did not use the polygraph as part of supervision. The evaluation found that the offenders subject to polygraph testing made more “clinically significant disclosures” than the comparison group. These are disclosures that led to changes in the way the offender was managed. Information disclosed as part of the polygraph process led to probation offender managers taking additional actions to manage the offender’s risk and to improve compliance with their licence conditions. This included, for example, changing the focus or frequency of supervision or, if combined with further information, recalling the offender to custody. The explanatory memorandum includes a link to the final published report of the evaluation study. That report provides full information on the effectiveness of mandatory polygraph testing during the pilot. In summary, it concludes that polygraph testing has the potential to lead to more informed and effective supervision by probation officers.

I am aware that there are a number of misconceptions about what a polygraph is and how it is used. Polygraphy is often seen in the entertainment industry, and if you search for polygraphy on the internet, you will find sites which tell you that it does not work and give advice on how to “beat” it. Opinion is divided about how accurate a polygraph is in detecting deception, but the US National Research Council indicates that the polygraph can obtain levels of accuracy of around 80% to 90%. This is clearly not the same as 100% accuracy but it is well above chance.

As part of the supervision of sex offenders, it is not the detection of deception that is the critical factor, rather it is the information disclosed by the offender before, during or after the polygraph test that is used to inform decisions about their supervision. In other words, it is less about “detecting lies” and more about gathering useful information to properly manage risk. For that reason—this is a point that I want to make absolutely clear—no offender will be recalled to custody as the result of a polygraph test alone. An offender will be recalled to custody only if there is additional information that they are not complying with licence conditions or that their risk to the public is increasing. In many cases, such information was volunteered by offenders in the pilots, when they were presented with the results of their tests. Nor will the polygraph be used to determine guilt or innocence. Indeed, Section 30 of the Offender Management Act 2007 specifically prevents any information obtained under the polygraph being used in criminal proceedings against the offender.

17:45

Breach action in relation to polygraphy, including recall to custody, can be instigated only if: an offender fails to attend a polygraph test; or, as a result of challenges from the test, subsequently disclosed information indicates that the offender is in breach of a licence condition or is an increased risk to the public; or, the offender fails to comply with the instructions of the polygrapher—including trying to beat the polygraph through use of countermeasures. Your Lordships may be interested to know that the most common supposed countermeasures, which include fidgeting, biting your tongue and clenching your toes, will be detected by the polygraph as these generally result in changes to the physiological measures that the polygraph is designed to assess. In summary, the polygraph test is used simply as an additional source of information by probation offender managers but it is a valuable one which, as I said, helps offender managers to manage offenders more effectively in the community.

Of course, if the polygraph test is to be useful, it is important that it is carried out in a properly regulated manner and only by suitably qualified and trained staff. During the pilots, the qualifications of the polygraph examiners and operating requirements for each polygraph test were governed by the polygraph rules, which were set out in a statutory instrument, the Polygraph Rules 2009. These rules were reviewed in light of learning from the pilots and are fit for purpose if, as I commend to the House, polygraph testing is rolled out more widely.

Protecting the public is our overriding priority. In particular, we are determined to do all we can to protect children and adults from sexual offending. To achieve this, we must do all we can to ensure that those who manage sex offenders in the community have the right tools and powers to support their work. The polygraph pilots have indicated that polygraph testing leads to improvements in the supervision of sex offenders in the community by providing probation offender managers with a valuable additional source of information with which to monitor licence conditions more closely. The Government therefore seek to make polygraph testing as a licence condition available for sex offenders throughout England and Wales. The draft order enables us to do that. I beg to move.

[Lord Beecham]

My Lords, we have heard a good deal about capacity and incapacity this afternoon. With respect, it does not say much for the capacity of the department that it clearly made an error in the way it presented the report to the Secondary Legislation Scrutiny Committee. It ought to be comforted by the fact that it was an error of only 40% compared with the 90% that appeared in the costing that it applied to higher-value claims in the criminal legal aid consultation paper—the department is moving in the right direction. In all fairness, it should be pointed out that the letter from the committee talked about “probationary trusts”, so capacity is perhaps an issue that extends to the committee as well as the department.

I very much welcome this report, for two reasons to start with: the whole scheme was started by the previous Government and Newcastle University was very much involved in it. Those are two grounds on which I could hardly fail to commend the Government for proceeding. It is right that the project should be taken forward.

I am slightly unnerved by the concept of polygraph testing. To me, it has echoes of “Minority Report”, the Tom Cruise film—I do not know whether the Minister saw it—in which, in a future world, technology is used to predict criminality by potential offenders and they are intercepted at an early stage. That nightmarish outcome is not envisaged under the regulations; on the contrary, they should assist in dealing with potential offenders. I welcome the assurance contained in the explanatory note, and given again by the Minister, that they will not be used as a basis for returning people to custody; nor will they be relied on in court proceedings. They are an indicator as to whether steps should be taken—additional supervision or the like—for offenders. That is a welcome limitation.

However, I have one or two questions. The discussion is about applying the polygraph tests to serious sex offenders. I am not clear what constitutes a serious sex offence for this purpose or how you define serious sex offenders. It would be helpful if the Minister could clarify that.

In addition, it is interesting that the process as currently envisaged sees the technician carrying out the test at the behest of a probation officer. Given the proposed changes in the probation service, do the Government intend that such an approach would always be supervised by a probation officer as opposed to some of the other people who will be carrying out supervision under the new contractual and payment-by-results system which the Government seem intent on pushing forward? Given the nature of the offences we are talking about, it would be preferable for these matters always to remain within the domain of the probation service.

The explanatory note refers to a national rollout targeting not only serious sexual offenders—a point I have already made—but,

“others for whom it is deemed necessary and proportionate”.

Again, can the Minister give an example—if not today, subsequently—of what is envisaged by that rather broad phrase? It seems to me that both parts of that phrase need to be more clearly defined.

In debate in the House of Commons, my honourable friend Jenny Chapman asked whether all sex offenders should be covered by the procedures, as opposed to serious sex offenders only, however defined. There is capacity, it is noted in the note, for a further 200 sexual offenders to be built into whatever contract is eventually arrived at—hopefully not with Group 4 or Serco—for this. That would be in addition to the 750 per year which it is anticipated would be subject to mandatory testing. Actually, the report states that the most recent figure is 780. So we might be talking about 1,000 people altogether, with that extra capacity of about 200.

The question arises whether that will be sufficient. It was argued quite forcefully by the Minister replying to the debate in the House of Commons, Mr Wright, that there was a cost factor here. One understands that, but the cost of this project is estimated at about £3 million. If every sexual offender were to be tested—although I am not suggesting that—that would increase the cost to, say, £12 million. Given the nature of the offences, I wonder whether the financial consideration should be all that material. I repeat that I am not suggesting that everybody should be tested, that would not be sensible—but I hope that an artificial financial limitation will not be imposed on the procedures. That would be a matter of public concern, whereas this whole proposal should reassure the public that their safety is likely to be enhanced by the process, with all the safeguards and qualifications to which the Minister has referred.

The Opposition approve the thrust of the report, and I look forward to hearing from the Minister about the queries that I have raised—either today or subsequently.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Beecham, for that response. As I made clear in my speech, the department regrets the error that was made, but at least we got good marks from him for our choice of university, so I have come out of this with some merit. I am not a great Tom Cruise fan and I have not seen “Minority Report”, but that is probably a generational thing. I started off with the same scepticism about polygraphs, mainly because of my addiction as a child and a young man to American B-movies where they quite often played a key part. I am thinking of Broderick Crawford exposing the villain.

The noble Lord said that making it available for all sex offenders was a consideration at one point, but the way we are approaching this enables us to target resources on those offenders who are likely to cause the most harm to the public. It will be for serious sex offenders, and just to clarify another of his questions, it will remain part of the public probation service. All offenders released on licence for sexual offences will be managed under the multi-agency public protection arrangements. All MAPPA cases will be retained by the public sector. This means that the providers of polygraph testing will work with offenders who are managed by retained public sector staff. We will ensure that all staff working with high-risk sexual offenders are appropriately trained and supported in how to use polygraph testing to enhance the effectiveness of the statutory supervision.

The noble Lord asked how the choice will be made. It will be made where the MAPPA process indicates sexual offenders who are assessed as being at high risk of both reoffending and causing serious harm. By doing this, it enables us to target resources on those offenders likely to be the most dangerous to the public. As the noble Lord said, I do not think that cost should be the decisive factor, although of course it has to play a part in deciding what we can afford in taking this forward, but more than cost it is a matter of proportionality. It is a useful tool for the offender manager. I am glad that he acknowledged that the whole thrust of both the pilot and now the proposal is to add an extra piece of equipment to the armoury of the offender manager so that he or she can make a better informed assessment of the danger to the public of a sex offender and thus take forward appropriate treatment—including, if necessary, recall. The noble Lord indicated that this was an initiative of the previous Government which we have carried forward and which I think we can recommend to the House with cross-party support.

18:00

[Lord Beecham]

I am very grateful for that response. Could he, in due course, set that out a little more clearly? I revert to this question of what constitutes a serious sexual offence. There are some obvious things—rape, attempted rape—but you get down to indecent assaults and so on. Are you going to be weighing, for example, a lesser offence by a record that suggests that it has been repeated, although it is not of itself a serious offence? In other words, what is the composition? That needs a little bit of elucidation. I am not asking for that now. Also, is there any chance of this system being extended to politicians or even Ministers?

[Lord McNally]

Even as I was speaking I was conscious that I was sweating but that is more because of our heat wave. Whenever you use words such as “serious” in part that is the professional judgment of the probation officers. It is their judgment and assessment of future danger and risk that qualifies them for this kind of assessment. The intention in bringing this forward is showing that assessing future risk is itself a risky business. We feel that this use of polygraphs as a tool in a wider range of skills and judgment by the probation officers is a useful addition—no more, no less. With that, I recommend the order to the Committee.

Motion agreed.

Committee adjourned at 6.02 pm.