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

Lord Beecham Excerpts

Monday 22nd July 2013 Grand Committee

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.

[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.