Victims and Prisoners Bill

Lord Blencathra Excerpts

Committee stage
Monday 5th February 2024 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have an amendment in this group—sometimes the way the groupings lie is a bit difficult. This group covers violence against women and girls, and my amendment relates to how we assess data on that violence. I thank the noble Lords, Lord Blencathra and Lord Jackson of Peterborough, for their support—and we shall hear from one of them shortly.

Amendment 105 seeks to probe problems with the data that we use to develop policies and ensure that there is guidance to establish that sex registered at birth is used for any analysis of patterns of offending and recording victim and perpetrator profiles. Ideally, this would apply throughout the whole criminal justice system but, for now, this amendment focuses on violence against women and girls. I hope that, on this topic at least, there will be unanimity in acknowledging that sex difference between men and women can impact on people’s experience of victimisation and offending and on patterns of offending and risk.

Official crime data is used to assess the most appropriate services that should be developed, and how resources should be targeted effectively—something that the Bill has focused on at length in relation to support for victims. But any claims for evidence-based policy must be based on material reality and cannot depend on, for example, subjective assertions or ideological beliefs, both of which could be misleading. I invite people to agree with me that data needs to be accurate, credible and consistent. The problem is that accuracy, credibility and consistency are being undermined at present, because the criminal justice system has either conflated or replaced data based on immutable sex with data based on more fluid concepts, such as gender identity or self-declared sex.

I am aware that even discussing the collection of data based on a person’s sex, whether male or female, has become controversial these days. One has only to look at last week’s media reports of internal rows taking place in the Office for National Statistics about the methodology used in the census. But that is all the more reason why my amendment emphasises the need to raise the consistent measure of sex registered at birth. At present, there is an inconsistent model of options. The variable category of “gender” is used carelessly in criminal justice circles as interchangeable with sex. Sex can mean, if used imprecisely, sex as self-declared gender. It can mean a legally recognised but none the less acquired gender, sometimes evidenced by a gender recognition certificate—GRC. It can also mean changed government records, such as passports, driving licences, or NHS numbers, even though a person’s biological sex does not change, even if the documentation does. But the introduction of this vast array of recording practices creates a lack clarity about what is being measured and what exactly some types of official criminal justice data represent.

To illustrate that confusion, let us consider that a few years ago the British Transport Police stated that, because the BTP treats all people—victims, offenders and witnesses—with dignity, it

“records their gender according to the gender they present as, and/or how they self-identify their gender”.

That seems to suggest that the British Transport Police is undoubtedly well meaning but none the less prioritises validating people’s identity rather than understanding that data collection is a critical variable in crime statistics. It is important we ensure that official statistics are not treated as personal records of preference; they must be objectively accurate if they are to be useful. What is more, different police forces use different criteria for data collection, and this is very important for our understanding of violence against women and girls.

Keep Prisons Single Sex is involved in an invaluable project and public service which annually submits freedom of information requests to all police forces in the UK with the aim of determining how they record a suspect’s sex. The campaign’s findings for 2023 make for troubling reading. Just for a taster, of the 32 forces that answered the freedom of information request, no force records sex registered at birth in all circumstances; 20 forces use legally recognised acquired gender where the suspect has a GRC; and 13 forces stated that, where a suspect has a self-declared gender identity, they will record this as sex, rather than sex at birth. Some 22 forces answered the question on how a rape suspect’s sex is recorded, with 20 forces recording legally recognised acquired gender—in other words, GRCs—and only one force recording sex registered at birth. This means that suspected rape perpetrators and convicted rapists can be recorded in official statistics as female, if they no longer wish to identify with their male birth sex. To confuse matters further, 22 forces answered questions on how they record the sex of a suspect who identifies as non-binary, with 11 recording sex as “indeterminate” or “unspecified other”, and only nine using sex registered at birth.

Noble Lords might wonder whether any of this matters, and some say it does not. However, in 2019, when Fair Play For Women revealed results from its FOI requests to police forces, the National Police Chiefs’ Council responded that:

“There is no evidence to suggest that recording a person’s gender based on the information that they provide will have an impact on an investigation or on national crime statistics, because of the low numbers involved”.


That is wrong-headed and complacent. On the point about the low numbers involved, one might ask what will happen if many more people apply for a legal sex change. Organisations such as Stonewall claim that the UK trans population is up to 500,000, even though only a small minority have GRCs. That would make a significant error in the datasets. Small numbers of cases misclassified in this way can lead to substantial bias in crime stats, and, importantly, can distort and mislead public understanding of the nature of, in particular, violence against women and girls and offending patterns in relation to sexual offences.

If the police now record female crime based on gender identity, this means female crime statistics include both women who were born female and trans women who were born male. I do not know whether noble Lords recall that, in 2021, newspaper headlines screamed that the number of female paedophiles had doubled in four years. This shocking statistic was based on a Radio 4 “File on 4” documentary that used data from FOI requests. It claimed that, between 2015 and 2019, the number of reported cases of female-perpetrated child sex abuse prosecuted by police in England and Wales had risen from 1,249 to 2,297, an increase of 84%. A moral panic followed, as people assumed that that meant that more women were sexually abusing children, with endless talking heads on TV discussing why. The furore calmed down only when it dawned on commentators that no account had been taken of whether males who identify as women might be responsible for the apparent increase because of confusion about data protection. Of course, maybe it is the case that there are more women sexually abusing children—after all, offending patterns do change. However, it is impossible to know or make that claim from the collected data based on a mixture of gender identity and sex registered at birth.

This sort of unreliability surely erodes public understanding. Trust is eroded when sex-disaggregated data held by the police does not actually record what most people think it does. Unsurprisingly, this can lead to media reports of female rapists, women as sex abusers and so on, when in fact what is being reported is male perpetrators claiming female gender identity. We have to look only at the widespread public shock when it was revealed that a double rapist treated as a woman when remanded in a Scottish women’s prison was in fact not the female Isla Bryson but Adam Graham. Indeed, that scandal precipitated the downfall of the Scottish First Minister, Nicola Sturgeon.

To finish, routinely such confusions continue. Only last week, in media coverage of a trial at Southampton Crown Court, both broadcast and print media reported that a 56 year-old female charity shop worker was charged with exposing “her” penis. Lawyers in court were quoted as describing how Samantha Norris pulled down “her” trousers and manipulated “her” penis in front of two 11 year-old girls as they walked past the window of “her” home. But it is “his” home, “his” pants and “his” penis. Mr Norris may identify as a woman and be treated as such by criminal justice agencies, but he is male. How can the public or public authorities have any realistic picture or analysis of the threats posed by violence against women and girls if these confusions are reflected in official data?

[Lord Blencathra (Con)]

My Lords, I support the noble Baroness, Lady Fox of Buckley, and shall speak to her Amendment 105. I apologise that I was not able to participate at Second Reading due to attending another meeting.

I submit that sex registered at birth is a fundamental demographic and explanatory variable reflecting the reality of sex-based differences between men and women. Sex registered at birth is a powerful predictor of outcomes and is established throughout the criminal justice system as important in the analysis of offending and pathways into offending and risk.

Males and females offend at different rates, with males offending at significantly increased rates to females. In September 2021, women represented just 4% of the total prison population. Some offence categories, including serious violent and sexual offences, are only very rarely committed by females, with the overwhelming majority of these offences being committed by males. For example, in 2019, women comprised 2% of prosecutions for sexual offences, 16% of prosecutions for violence against the person and 7% of prosecutions for possession of weapons. The groups with the highest proportion of males prosecuted were sexual offences, at 98% male, and possession of weapons, at 93% male. Pathways into offending also differ between the sexes. There are strong links between women’s acquisitive crime—for example, theft and benefit fraud—and their need to provide for their children. For women, a history of male violence, including coercive control, frequently forms a distinct pathway into offending.

Sex registered at birth underpins the provision and planning of services within the criminal justice system, with the female offender strategy providing an evidence-based case to address the distinct needs of women in the criminal justice system. More generally, differences due to sex underpin risk assessment processes, the provision of offender treatment programmes, and the differing security categorisation and arrangements in the male and female prison estates. It is for these reasons, I suggest, it is fundamentally important that, throughout the criminal justice system, suspects’ sex registered at birth is recorded—for all offences, not just violent or sexual offences against women and girls.

However, despite the clear, established, evidence-based importance of sex registered at birth, throughout the United Kingdom police forces routinely record suspects’ gender identity, self-declared gender, legally recognised gender or transgender identity and not their sex registered at birth, including in the case of rape. I will not quote all the statistics which the noble Baroness, Lady Fox of Buckley, quoted on the freedom of information access requests acquired by Keep Prisons Single Sex, but it seems to be the case that in at least 32 of our police forces there is a complete mishmash in recording the sex of offenders, and that leads to perverse consequences.

There is no evidence that either legally recognised acquired gender, where an individual has been issued with a gender recognition certificate, or self-declared gender or gender identity have even equivalent explanatory power. In fact, where evidence is available, it continues to demonstrate the superior explanatory power of sex registered at birth to offending. I am sure some will argue that, even if sex registered at birth is erased from data in this way, surely the number of times it happens is so small that there is no appreciable impact on the data overall, so why does it really matter and why get upset about it.