Domestic Abuse Bill

Baroness Garden of Frognal Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I call the noble and learned Lord, Lord Morris of Aberavon. We do not seem to have him, so we will go on to the noble Lord, Lord Kennedy of Southwark.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the opposition to Clause 69 standing part, and Amendment 191, both in the name of the noble Lord, Lord Marks of Henley-on-Thames, have enabled us to debate the whole issue of mandatory polygraph tests, and the fact that such tests could be made a licence condition for domestic abuse offenders.

I certainly want to see effective action taken against offenders, and effective punishments given to them. I have some concerns about the use of the polygraph test. If we rely on it further and further, it should be piloted in the way set out in Amendment 191, and we must be convinced of its reliability. As the noble Lord set out in his amendment, a report evaluating the trials must then be laid before Parliament and debated and a positive resolution passed by both Houses. I have had no involvement in this technology and I have no understanding of it—apart from what I have seen on television—so I believe that we must be very careful to get this right.

I was concerned by the comment made by the noble Baroness, Lady Hamwee, which seemed to suggest that we would not have our own standards but would import them from another country—America. I would much rather that as a country we had our own standards, in which we had confidence, than import them from elsewhere. But polygraph testing is not widely used in this country and before we go much further, we need to be confident that it is reliable, and an effective and useful tool in the management of offenders.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, shall we see if we have the noble and learned Lord, Lord Morris, on the call? I do not think we do, sadly, in which case I call the Minister.

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Lord, Lord Marks of Henley-on-Thames, seeks to strike out—alone among the clauses in the Bill—Clause 69. I will endeavour to persuade him, and the rest of the Committee, that this clause, like others, can play an important part in protecting victims of domestic abuse. Right at the start, however, I join the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, in thanking those at the MoJ who provided the presentation made to them. This was a very good example of how that sort of interaction—what one might call a learning session—can help everyone when we debate these matters in Committee.

Clause 69 allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences have included, until now: murder, specified violent offences, and the controlling or coercive behaviour offences set out in the Serious Crime Act 2015.

Polygraph examinations are already successfully used in the management of sexual offenders supervised by the National Probation Service. The clause extends the use of testing to include—in response to the noble Baroness, Lady Hamwee—high-risk domestic abuse perpetrators: those who have been released from custody having served a sentence of 12 months or more and are on licence.

The polygraph testing is used to monitor an offender’s compliance with other licence conditions, such as those restricting contact with their victim, requiring the offender to notify the probation officer when they form new relationships, or prohibiting entry into an exclusion zone; for example, around their victim’s home. It is also used to monitor dynamic risk factors such as alcohol or substance misuse.

I will try to respond to a number of questions asked by the noble Lord, Lord Marks, but if I miss any out, I undertake to write to him after reviewing the Official Report.

The policy underpinning these provisions does not allow offenders to be recalled to custody for failing a test. I use the word “fail” being cognisant of the fact that, as the noble Baroness, Lady Hamwee, said, we are not talking here about failing in the normal sense of the word. Indeed, I think the noble Baroness explained her approach to polygraphs as being somewhere between a yes and a no; that might be applicable to the polygraph itself. The clause does, however, enable offenders to be recalled for making disclosures during testing which, when considered with other evidence, suggest that the risk can no longer be managed in the community.

The offender can also be recalled to custody if he or she refuses to take the test or tries to trick it in some way; for example, by controlling their breathing. However, in response to the questions put to me, I draw the Committee’s attention to the fact that disclosures made voluntarily by the offender during the polygraph examination may reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.

Polygraph testing can be required as part of the licence conditions imposed on an offender following their release from custody. It can be imposed only where it is deemed necessary and proportionate to the risk posed. Importantly, in its report on the draft Bill the Joint Committee did not object in principle to extending polygraph testing to domestic abuse offenders; it sought assurance on two issues.

First, it sought an absolute assurance that no statement or data derived from a polygraph test would be used in criminal proceedings. The Joint Committee acknowledged that this appeared to be the effect of the draft Bill. In that regard, the provision in Clause 69 must be viewed alongside the existing provisions relating to polygraph testing in the Offender Management Act 2007. Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.

To be clear, however, this does not preclude information derived from a polygraph examination being shared with the police, who may decide to use the information to conduct further inquiries. If, as a result of those inquiries, the police obtain other evidence that suggests that an offence has been committed, charges may be brought against the offender.

The second concern raised by the Joint Committee was that polygraph testing should not become a substitute for careful risk analysis—a point that, I think, was also made by the noble Baroness, Lady Hamwee. I assure the Committee that the use of polygraph examinations will not replace any other risk assessment tools or measures, such as the multiagency public protection arrangements—MAPPA—but will provide an additional source of information that would not otherwise be available.

The evaluation of the pilot mandatory polygraph testing for sexual offenders concluded that offender managers found polygraph testing very helpful. To date, 5,000 tests of that type have been carried out on 2,249 offenders, and 1,449 tests have resulted in the offenders making significant disclosures that led to either a refined risk management plan or recall to custody.

With regard to the qualifications of those carrying out the examinations, I assure the Committee that they are carried out by qualified and experienced probation officers who have completed three months’ residential training to become accredited polygraph examiners, and all polygraph examinations are quality assured by an independent external provider.

However, while the use of polygraph examinations is tried and tested, as I have said, in the context of the management of sex offenders, the Government accept that domestic abuse perpetrators represent a different cohort of offender. That is why we are committed to piloting the provisions in Clause 69. I draw the Committee’s attention to the commencement provisions in Clause 79, which expressly provides for such piloting; we will begin this as soon as is practicable after Royal Assent.

We intend to run a three-year pilot in the north of England, involving about 600 offenders. Half will be subject to testing and half—the control or comparison group—will not. The Cambridge Centre for Evidence-Based Policing, in collaboration with the University of Cambridge, will conduct an independent evaluation of the pilot, and only if the results were positive would we roll out testing across England and Wales. In response to the specific question put to me by the noble Lord, Lord Marks, in conjunction with his Amendment 191, I am happy to commit that the Government will lay a copy of the evaluation report before both Houses prior to any decision on wider rollout, enabling noble Lords to consider the findings in full. I hope that that is helpful in response to his question.

Given the benefits that we have seen with the use of polygraph testing to help us to manage the risk posed by convicted sex offenders, I apprehend that the noble Lord, Lord Marks, now sees the merit, at least in principle, of analysing the question of whether we can use the same procedure with regard to serious domestic abuse perpetrators. Indeed, last week, we heard calls for the more efficient and effective use of technology to protect victims of domestic abuse—Clause 69 does just that.

With the repetition of the point that I will go through the Official Report, because there may be one or two questions that I have not directly answered but which deserve and will get a written answer from me, I invite the noble Lord to withdraw his challenge to Clause 69, which I commend to the Committee.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I am afraid that we have had no luck getting in contact with the noble and learned Lord, Lord Morris, so I call the noble Lord, Lord Marks of Henley-on-Thames.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I am grateful to the noble Lords who have spoken in this debate and to the Minister for his careful response. I echo both his thanks to those in his department who organised the learning session last week and his view that it sets a good example; it would be very good to hear more often from experts in the department—particularly about the use of technology, where Members of this House perhaps have less expertise than they do in other legal areas.

My noble friend Lady Hamwee asked a number of questions, some of which were answered by the Minister. I am not sure that he addressed the question of what is meant by, and what the criteria are for, “high-risk” perpetrators. She also wanted to know what exactly is meant by “failing” a test; I understand, as did the Minister, the concept of evaluating a test, but there is a problem with our general understanding of results of polygraph tests as binary and with the use of the term “failed test”, which frequently figures in discussions around this issue. Given his echo of the description of answers as “somewhere between yes and no”, as expressed by my noble friend Lady Hamwee, the Minister clearly appreciated that these tests cannot provide definitive answers. Will he and others give consideration to how far they should be treated as more indicative than binary?

I am less concerned about the use of information, as described by the Minister, that is derived from polygraph testing and used to submit information to the police for further investigation, which would then come up with real evidence. I am, however, a little concerned about recall based on disclosures. I understand the point that there is some similarity between disclosures that arise as a result not of polygraph testing but of, for instance, discussions with probation officers; however, I still think that there need to be safeguards. The Minister may like to consider those and put out some guidance as to how they are to be dealt with.

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I understand what the Minister said about piloting and the role of Parliament in considering polygraph testing. I understand that he will lay a report on the rollout before Parliament so that it can consider it, but I would like to know if it is proposed that there will be further regulations before the clause and system are made permanent, which will need parliamentary approval—perhaps he could tell us that in due course. However, on the basis of what he has said, I withdraw my opposition to the Question that Clause 69 stand part of the Bill.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I regret to say that I have had a late request to speak after the Minister from the noble Baroness, Lady Hamwee. I apologise: there is often a delay when the clerk sends a message to the Woolsack. I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

Thank you. I apologise for throwing the proceedings. I have just received an email saying that I am about to be called.

My question concerns how the Minister dealt with the fact that information—I hesitate to use the term “evidence”—obtained during a test cannot be used as evidence in legal proceedings. It has only just occurred to me that, of course, family proceedings in particular—as well as civil proceedings—are very important in respect of domestic abuse. I am unclear as to the status of what is learned during a polygraph test for family proceedings. If the Minister cannot answer that now, could he add it to the questions that he will reply to after today?

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Clause 69 agreed.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, we now come to the group consisting of Amendment 146. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and that anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 70: Guidance about the disclosure of information by police forces

Amendment 146

Moved by

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am absolutely delighted to be a signatory to this long overdue amendment, which I thank the noble Lord, Lord Russell, and the other co-signatories for bringing forward. It relates to a policy that I have advocated for years—that we should make misogyny a hate crime.

Part of the problem is that misogyny and sexism are deeply embedded in our society. The noble Baroness, Lady Bull, talked about a protective kindness from men towards women. Quite honestly, we do not need that. Misogyny and sexism can be covered up by teasing and even flattery, but it is totally inappropriate and it is time that men learned that. We have enshrined our condemnation of racism and homophobia in law, but we are not treating sexism as the same kind of priority and it is time that we did.

According to statistics, 90% of British women experienced street harassment before the age of 17. Street harassment is being shouted at. We are not talking about wolf-whistling; we are talking about men shouting at women, making them embarrassed and perhaps making them feel less free to walk down a street. Eighty-five per cent of women aged 17 to 24 have been subjected to unwanted sexual advances. Can your Lordships imagine that—that 85% of women have been groped by people whom they do not want to be groped by? Therefore, it is time to make misogyny a hate crime.

The amendment is long overdue and I hope that the Minister will say that she accepts it completely. Several noble Lords have talked about Nottinghamshire Police being trailblazers on this. It has seen a 25% increase in the reporting of misogynistic crime and a very high level of satisfaction among the people—mainly women—who have reported those crimes, because finally they have been taken seriously. As noble Lords have also said, only 11 out of 43 police forces in England and Wales have made misogyny a hate crime, have trialled it or are actively considering implementing this.

Part of the problem is that, just as the police are representative of society, there will be police officers who are sexist and misogynistic. This means that they need training. I have in the past mentioned the sort of domestic abuse training that some police forces are already getting. It makes the officers aware of exactly what happens and creates more empathy for the people who are being abused. For me, domestic abuse training is part of what will help to solve this problem that we have of misogyny. I hope that standing up and talking about it here will also help.

It would be a real shame for this amendment not to be accepted on to the statute book, but will the Minister at least promise to open a debate on this issue among police forces? It is in her power to do that. I would be very pleased if she accepted this amendment but, if not, could she take it forward in any way that she can?

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I call the noble Lord, Lord Lucas.

[Lord Lucas (Con) [V]]

[Inaudible.]

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

We cannot hear you.

[Lord Lucas (Con) [V]]

It will be immensely helpful to have a process of gathering information ahead of the Law Commission report on whether extension of hate crimes to embrace misogyny will work, and how. At present, we do not have good information. This is a really difficult area; I do not think that any of us has trouble with the concept of hate crimes, but the Scottish Parliament is currently undergoing extreme difficulty with the concept of hate speech. Many police forces in the UK are doing some very strange things with “hate incidents”, where these can be recorded just on the say-so of one person and then appear in another person’s DBS check. There are some difficult things happening around hate crimes and hate incidents generally; having good data must, surely, be at the core of reaching good conclusions.

Here, we have a difficulty in that the police have changed their recording of crimes and reports so that they record only the reported gender of a person and not their natal sex, as is the protected characteristic under the Equality Act. Recently, we have seen extraordinary rises in the reported level of sexual abuse by women. Is this real? Is there something happening to women in our country that we really ought to understand, or is this a fiction of the change in the police reporting method? Not having accurate data disables us in understanding what to do.

I very much hope that, if something comes of this—I hope it will—the police will not only record the natal sex but will record the gender of all the people concerned so that we can understand exactly what is happening. It really does not help trans people that the hate they are subject to is subsumed under misogyny if they are trans women. We need to know whether this is happening to them because they are trans. We are trying to gather data and understanding; the better the data we have, the better our response.

I support, but would like to see extended, the definition at the end of this. It is really important that we have clarity and completeness. Let us record sex as per the Equality Act definition because that is, as my noble friend on the Front Bench has confirmed to me on previous occasions, the basis on which the Government are working. Let us also record self-identified gender or whatever other formulation works best—we could perhaps adopt the one from the forthcoming census—so that we have a complete picture of misogyny and trans misogyny and can, when the time comes, craft effective laws about it.