BARONESS SMITH of Basildon rose on the floor of the House of Lords to call for greater powers against sex offenders.
“My Lords, I am grateful to the Minister for her explanation and the information that she has given to the House on the two sexual offences orders. I shall take them in reverse order. On the notification requirements order, we are broadly supportive but I have a couple of questions, and I was able to have a brief discussion with the Minister earlier to give some indication of what I wanted to ask. My understanding is that the order applies to England and Wales, because policies relating to sex offenders in Scotland and Northern Ireland are devolved to those Administrations. I would have thought, though, that it was important to have some consistency between England and Wales legislation and that in the devolved Administrations. Are there any differences across the UK and, if there are, what are they and how are they being addressed?
I am happy to be corrected if I am wrong, but I think that Northern Ireland currently retains its three-day loophole, as it has become known, whereby an individual does not have to notify the police of foreign travel of less than three days. Have the Government had any discussions with Ministers in the Northern Ireland Assembly and the Scottish Parliament on this issue? What discussions have there been with other European countries? Do they have similar reporting and notification requirements? What co-operation is there between the UK and other European national police forces? That seems to be an area where greater co-operation between us and EU police forces would make great sense.
I was able to talk briefly earlier to the Minister about notification requirements for online identities. I am not clear how these are covered or whether they are covered effectively. I am aware that online social networks are increasingly used to contact and groom young people for sex offences. There are some quite horrific and frightening examples. Jenny Chapman, MP for Darlington, has taken this issue up very robustly. In her constituency a young woman called Ashleigh Hall, who was 17 years old, was tricked into meeting a 33 year-old convicted sex offender, who posed on the internet as a 19 year-old man, and she lost her life as a result of meeting up with him.
It is clear that convicted sex offenders register different identities online. Given that registered sex offenders have to notify the police of any identity documents that they have-passports, for example-I am not clear how online identities fit into the proposed and current notification requirements. We are all aware that there are sex offenders who are frighteningly clever and devious in stalking and grooming their prey and that it is perfectly possible to set up different, multiple online identities. I am not so naive as to think that telling a registered convicted sex offender that he will have to tell the police about each and every online identity would work on its own, but clearly this is a problem area. Given the information in the impact assessment on the second order about sex offenders’ propensity to reoffend, this area must be monitored, and I am interested in how the Government plan to do so. Maybe that is in other legislation that I am not aware of, but I thought that it might have been in here as we are talking about notification requirements.
If this is helpful, Surrey Police has pioneered-it has been honoured for the work that it has done in this area-innovative software that monitors online sex offenders. I understand that it has successfully trialled this and now uses it to monitor 25 different criminals. This software installs onto their computer software which monitors use and sends alerts if any risky behaviour is detected. It is looking to use that across the country. So there are ways of starting to deal with this. However, I would be interested to know what the current position is, just in case I have missed something and there is something in this order or other legislation that covers the creation of online identities by those who seek to groom young people for sexual abuse, an activity which led, in that case, to murder. Have the Government sought the views and advice of the Child Exploitation and Online Protection Centre? The noble Baroness mentioned that they have its support, but just in the implementation-it is not mentioned in the consultation documents as a consultee. I am sure that the Government will have had some contact and I that think their input would have been helpful.
On the second order, the remedial order about reviews, I am far less comfortable that the Government are taking the right position. I am grateful to the noble Baroness, who knows my concerns, for taking time to explain the Government’s views. I have also read the report by the Joint Committee on Human Rights, which is helpful in explaining why the Government are bringing this order forward, following the case of F and Thompson v Secretary of State for the Home Department in which the Supreme Court declared that the indefinite notification requirements in the Sexual Offences Act 2003 were incompatible with Article 8. That happened because, if I understand it correctly, there was not the opportunity for the individual to be treated as an individual and to apply to come off the register.
I am concerned about the Government’s inconsistency on legal judgments. Clearly the Government have been keen to accept the judgment of the Supreme Court on this issue and in legislative terms. Many noble Lords who have been in this House longer than I have will recognise that this legislation has been brought forward quite quickly. However, the Government do not always take this view. In fact, when the European Court of Human Rights ruled on the right of prisoners to vote, the Prime Minister-although he may have been in opposition at the time-said that it made him physically sick. I do not go that far, although I think that one of the consequences of losing one’s liberty through crime is a loss of the vote for the period of incarceration. However, I cannot understand why he does not feel equally strongly about this issue, which has a far greater emotional impact for me.
I also see the order in the context of other changes that the Government are making to legislation involving the registration of those convicted of sexual offences. We have seen in the Protection of Freedoms Act how the definition of a regulated activity-when someone is on the sexual offences register, they cannot work in a regulated activity-is now far narrower than it was. Also, whereas previously someone automatically went on to a register, there is now a gap of around eight weeks and someone can apply to come off the register before they go on it. Whereas before they could apply to come off the register, now they might never go on it, depending on the outcome of the initial review.
At the moment there are around 53,000 convicted sex offenders on the register. More than 29,000 of those are on it indefinitely and, in effect, they are the subject of the order. I have tried to understand the Government’s rationale beyond the Supreme Court decision. I looked at the impact assessment and wondered what other avenues the Government considered. The Government looked at options from doing nothing to a full court-administered review system and plumped for the option before us today, option 4. There are three things to look at-the costs, the benefit and the risk. Page 16 of the impact assessment shows the costs. I understand that if there is going to be a review process it has to be robust and effective. The assessment states:
“The costs associated with this option would be absorbed by the agencies to which they fall and would represent opportunity rather than financial costs”.
Those agencies are the police, currently facing 20% cuts in their budget; social services, also facing cuts in their budgets and struggling; and the probation service, which is also facing cuts in its budget. Yet they are being asked to take on additional responsibilities and the Government are not able to identify what those costs are, other than that they are opportunity costs.
We then come to the transitional costs. The Government say that there will be some costs in the first year for guidance and training, up to an estimated £50,000. However, the impact assessment says that there will be transitional costs for the other agencies, which I assume means the police, social services and the probation service. Regarding those costs the assessment says that it,
“has not been possible to quantify this”.
Under “Cost of a review”, the assessment says that the process,
“would take up approximately 9 hours of police time, including 3 hours of superintendent time as well as 6 hours of involvement from other agencies… estimated at £630”.
That is a fairly conservative estimate. I worry because although the Government have set up this process, I wonder how the agencies that are required to conduct the review will find the resources to do it as effectively as they need to.
Page 17 of the impact assessment discusses the “Continuation/Discontinuation of notification requirements”. As so often on this subject, the assessment says that things cannot be quantified. For example, it says that,
“it has not been possible to quantify the cost of those applying for subsequent reviews”,
in terms of the time involved. The Government do not seem to know what the costs will be. However, they do know that they will not have to pay those costs and that somebody else will. That is a concern.
Lord Lester of Herne Hill (Liberal Democrat)
“So that I can follow the noble Baroness’s argument, is it the position of Her Majesty’s Opposition that there is some alternative to the view taken by the Joint Committee on Human Rights that these are sensible and proportionate ways of complying with the Supreme Court’s judgment and the relevant law? If she is suggesting that, it would be helpful to know what the alternative would be.
Baroness Smith of Basildon (Labour)
No, at this point I am not suggesting an alternative. I would like the Government to go away and think about the alternatives. I will come on to this later, but if the Government are going to set up a review system, they will need to have more information about the system they are setting up-about the costs, benefits and risks.
I have looked at the costs. The Government say on page 19 of the impact assessment that the benefits will be similar to those listed in part 3 of the impact assessment, which are relatively minor. The assessment says that,
“it has not been possible to quantify these”-
other than to say that if people come off the list then there will be savings in police time. So the Government are not able to tell us the costs or the benefits.
As for the risks, there are a number of unknowns:
“There are the following unknowns in relation to this policy:
The actual volumes of applications for review;The impact of the review mechanism … The volumes of offenders whose indefinite notification requirements will be discontinued as a result of the review process;The potential impact of ending notification requirements on re-offending rates and detection rates.The actual costs and savings that will result”.
Is it wise not to quantify the costs, benefits or risks while taking a course of action? If the Government think that this is the right course of action then they should line these things up first.
One risk, of course, is reoffending. The Government’s impact assessment states:
“A number of studies have been considered in the development of this policy which analyse reconviction rates of convicted sex offenders over a follow-up period of 20-25 years. There is no evidence that a point can be reached at which a sex offender presents no risk of re-offending. Approximately a quarter of the previously convicted offenders were reconvicted for a sexual offence within this time period”.
So, within 20 to 25 years, a quarter of those who had been convicted were reconvicted. However, the assessment does tell us:
“We do not anticipate any greenhouse gas impacts as a result of these proposals”.
I thought that that was rather bizarre.
I hope that the Minister can address some of the concerns that I have raised because they worry me enormously. However, there are some specific points about the order on which I am clear. The regulations refer to the “determining officer”, who I take to be the police officer who will make the judgment on the review. Are the Government clear about what rank, experience, training and guidance that officer should have? The order says that any review would have to be signed off by a superintendent. With the increase in workload given the 20% cuts, I am worried that that will make it more difficult for the superintendent. The review by the superintendent is unlikely to be a rigorous process. The rigour has to come from the determining officer who undertakes the review. Clearly the review itself will have to be a vigorous and detailed process, and I doubt that the Government intend that it should be otherwise. However, unless the Government can be assured that those in the review process have the experience, access to information and the relevant good training, any good intentions for rigorous process will not be realised.
What evidence does the Minister envisage will be required to enable someone to come off the register when they apply? Will it be sufficient for them not to have breached their notification requirements? Is the onus on the police to prove that they still pose a risk, or will the convicted person on the register have to prove that they no longer pose a risk? The Government have estimated the number of people who might be eligible for review. Has any risk assessment been undertaken to develop guidance on how many of those who are on the register are still deemed to pose a risk and should therefore stay on it?
I also refer the Minister back to my comments about the very high levels of reoffending. What would happen if an offender were taken off the sex offender register and then convicted of a further offence? Would committing any sexual offence ensure that they would be put back on the register, or just those offences that would have qualified the offender to have been put on the register originally? Would somebody who had been on the register and then come off it only to go back on it-if they are able to go back on it-have the right of appeal in the future; or, as a result of the second instance, would they have to remain on indefinitely? Would there be a chance for them to appeal at a later date?
There are also many cases where sexual assault cases do not get to court because the victims or witnesses do not want to give evidence or are perhaps unable to. For example, I have personal knowledge of a case where a rape victim was advised by the CPS to pursue an action for GBH rather than rape because it would be easier to get a conviction. I am sure that I am not the only person to have been given that information. Are there circumstances in which somebody who has been charged with an offence, or even cautioned during their time on the register, still be allowed to come off the register?
It seems that there are some grey areas that the regulations do not cater for. I would be interested to know whether the Minister is able to address these points. I have grave reservations about the proposals both in principle and in practice. I understand the comments that the Minister made at the beginning about trying to achieve a balance-she described it as a balance between individual rights and public safety. However, the principle here is that risk is increased, as even the Government’s own impact assessment accepts. The risk is that a convicted serious sex offender could be removed from the register and then reoffend, which is a serious risk. I am sure that the Minister will understand exactly why this needs to be managed. In practice, however, it is an issue of resources to ensure that a review process is set up. For that process to be effective, efficient and risk-free it has to be properly funded-and yet the Government have taken this step at a time when they admit that it cannot be risk free, at a time of massive cuts in the police. I am not convinced that the review process can be as robust as the Government want it to be. I have to say to the Minister that would have given me sleepless nights when I was a Minister. We cannot accept that this is the right way to proceed. I understand that the Government are intent on doing this, but they will have to do it without our support.
