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New clauses 9 and 10 are two different approaches to the same problem: the risk assessment of offenders on the sex offenders list. It is coincidental that we are debating the matter today because it relates to two recent high-profile cases: today there was a report on the rapist and murderer of Naomi Bryant, and, three or so weeks ago, a paedophile was reported as having persistently raped a nine-year-old girl over a period of three years. Both people were on the sex offenders list,
and it is possible that a change along the lines that I am suggesting could have helped in those cases.
The police in this country are required to risk-assess offenders. The House will be aware that paedophiles are especially prone to reoffend. If I may quote a well-known barrister steeped in the practice of defending paedophiles—I cannot think of a more obnoxious task—they are the “most devious, lying individuals” she has ever had to deal with.
Most western countries have sex offenders lists and virtually all require risk assessment. Most give the police the opportunity to do that, but, unfortunately, those undertaking such risk assessments in this country have limited rights of access. Here, to date, most offenders co-operate, but I am fairly sure that that is mainly because they are ignorant of the fact that they can shut the door in the face of the police or their agents who come to check a residency for the purposes of a risk assessment.
Unfortunately, it is increasingly becoming apparent that more and more such individuals are realising that there is a flaw in the legislation. Many give false or temporary addresses. They move to caravans or move around in caravans. I know of a group of them who live in canal boats in London. Some live with relatives, or give relatives’ addresses. It is quite hideously worrying for the police that one individual, whom I will not name, owns a block of flats, and, as far as he is concerned, the front door of the block of flats is his front door. The police thus cannot get into the block, although they are aware that single-parent mothers and their children live in flats in that block—one’s imagination can run with that.
We discussed all these matters with the Minister’s predecessor. I felt that there was general agreement between my team and the Minister that change was needed, but it was the approach that we were discussing. New clause 9 follows the approach that I believe the Minister and his advisers wish to follow. I understand that it is the approach that has been taken in Scotland. Ministers prefer that both countries should have comparable legislation, unless we can arrive at better legislation. In spite of my Scottish ancestry, it might be appropriate that we have better legislation here in England and that the Scots copy us rather than the other way round.
New clause 9 enables the police to obtain a warrant to ensure confirmation and risk assessment. I personally feel that new clause 10 is a better approach. It is a lateral-thinking approach in that it requires the offender to co-operate, both within a reasonable excess request and to co-operate with any reasonable risk assessment requests. The clause goes further than new clause 9 but is gentler. New clause 9 requires admission and new clause 10 co-operation. I think that we will find that most of our beleagured police forces would prefer new clause 10 because it goes that step further.
I suspect that some people may believe that the human rights of the offenders that we are discussing are being breached. I point to the word “reasonable”, which appears in both of the new clauses. Secondly, it would be rather nice if we considered the human rights of the children who could be abused. Child sex offenders frequently go on to abuse. They abuse the human rights of individuals. Some offenders may rape,
something which I have mentioned already. There is sometimes murder, as has been reported in today’s media.
I hope that the Minister will see that there is an opportunity to act now. It is an opportunity to move: before even Microsoft is ready for us, we are ready for it. Delay would leave a breathing space for some horrible offenders who have a record of often horrendous abuse towards innocent members of our society, especially children. There is a figure that the police gave me some years ago; they conservatively estimate that there are 230,000 active paedophiles, many of whom are women, in this country. That is a sufficient number for one in every street.
David T.C. Davies (Monmouth) (Con): I support the amendment tabled by my hon. Friend the Member for Castle Point (Bob Spink). I understand that conditional cautions were being handed out as a means of discouraging people who might have committed one offence from committing further offences. It was a form of warning. As my hon. Friend said, it was a way of pulling people up short. It is clear that the system is being flagrantly abused. It seems to have been transmogrified into a means of keeping people out of the courts and ultimately out of prison, which I believe is a means of saving money. I find that unacceptable.
Labour Members will know that only one crime in 20 is solved. I believe that that includes the 30,000 or so people who are issued with cautions every year. That means that anyone who commits a crime can be assumed to have committed at least 20 offences before being caught. We have been discussing paedophiles disseminating child pornography, and it is reasonable to assume that they will have committed many more than 20 offences when they are finally caught.
It is ludicrous that we caution people who have committed such serious offences. We issue cautions for offences such as burglary or grievous bodily harm. I would much rather scrap the system of cautions when people have committed serious crime and bring them to court, punish them and give their victims justice. If we must continue with the ludicrous system of cautions, which is abused, the very least that we can do is try to ensure that those who have committed the most serious offences are not able to escape justice by accepting caution. There are not many offences that are more serious than disseminating child pornography and abusing children for some perverted and twisted personal enjoyment. It is only appropriate that we remove the right of criminals to be able to accept a caution for something as serious as the offences that they have committed.
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Joan Walley (Stoke-on-Trent, North) (Lab): In welcoming my hon. Friend the Minister to his new post, I should like to draw his attention to a loophole in the existing legislation. Individuals on the sex offenders register can be elected as local councillors. They are not covered by guidance from the standards commission, as they were included on the sex offenders register before it was introduced. If we expect local councillors
to have close links with local schools and vulnerable people there ought to be a means whereby their inclusion on the register is considered in risk assessment by local authorities and the police.
In the past 12 months and over a longer period, I have gone round the houses raising the issue with the Standards Board for England, the Office of the Deputy Prime Minister and the Home Office. I raised it with my right hon. Friend the Member for Bolton, West (Ruth Kelly), who was then Secretary of State for Education and Skills, during the passage of earlier legislation in the House, and I tabled a parliamentary question on the matter in January. I asked the Home Office
“whether the proposals to develop a new vetting and barring scheme will include provisions to bar those on the sex offenders register from holding office...as a local councillor and...on a police authority”.—[ Official Report, 3 May 2006; Vol. 445, c. 1630W.]
I was told that that was a matter for the Education Secretary and that responsibilities for vetting procedures for the police lie with the Home Office and those for local councillors with the Office of the Deputy Prime Minister.
Having gone round the houses, there is still a flaw or loophole in the legislation. My constituents are very concerned indeed that a local councillor in a position of authority may have to deal with residents’ worries about people on the sex offenders register, so I urge the Minister to consider whether that loophole should be allowed to exist.
Mr. Dominic Grieve (Beaconsfield) (Con): I, too, welcome the Minister to the Dispatch Box.
In tabling new clause 1, my hon. Friend the Member for Castle Point (Bob Spink) has done the House a considerable service, as he has raised an extremely important issue that causes people anxiety. The granting of cautions for serious offences is bound to cause public disquiet. The circumstances surrounding recent cases tend to relate to serious allegations of sexual misconduct against children or others which, however, are very old—sometimes those allegations were made 20 to 25 years previously. The Crown Prosecution Service may have considerable anxieties about whether a conviction can be secured, whether the evidence can be put together, and whether a trial will be a difficult undertaking in the circumstances. I entirely accept that one must bear that in mind, so I have some sympathy with the problems faced by the police and the Crown Prosecution Service.
Sir Paul Beresford: The paedophile police, if I may use Daily Mail terminology, say that if they get offenders or potential offenders early, they use the caution as a means of forcing them to get treatment, which does not necessarily land on the taxpayer.
Mr. Grieve: My hon. Friend makes an important point. The cases that I was citing are cases in which, I fear, the person concerned has gone on to commit a multiplicity of offences, but there is no evidence that he has been committing offences for some time. In some cases the alleged offender is very old.
Difficult issues are involved. I have anxieties about the principle of cautions being used in serious offences. It cuts both ways. If the offence is very serious, people may end up accepting cautions when they ought to be pleading not guilty to the offence. That is a form of plea bargaining, and we know—we will come to it in the next group of amendments—that there may be a massive disparity between the sentence that a person may attract if they are convicted in court, and the relatively lenient sentence that may be visited on them if they accept their guilt previously.
Bob Spink: I am following my hon. Friend’s arguments carefully, and he is making a lot of sense, but given that accepting a caution means that the offender will go on the sex offenders register for offences against children, does my hon. Friend acknowledge that it is highly unlikely—indeed, unthinkable—that anyone would accept a caution and not go to court, if they were innocent?
Mr. Grieve: I hesitate to be so certain in my own mind. We know enough about the criminal justice system to know that it is human and fallible. Sometimes accusations are made against individuals that are subsequently shown at trial not just to be unproven, but to be wholly wrong. There are circumstances about which I have anxieties. Those go beyond cautioning to extensive plea bargaining, with huge disparities between the sentence that will be attracted on conviction and that which will be visited on a guilty plea. One can end up with a situation—I see the Minister nodding—where there are excessive inducements to individuals to try to bring the matter to a premature conclusion.
These are difficult matters, and those of us who have practised in the courts know the difficulties that we sometimes have in getting our clients to sign the back sheets of our briefs to indicate that they have been fully advised about cases before they accept any form of formal or informal plea bargaining. I wait with interest to hear what the Minister says in response. The point made by my hon. Friend the Member for Castle Point is that this is a matter that should properly concern Parliament.
I shall not repeat the arguments ably put by my hon. Friend the Member for Mole Valley (Sir Paul Beresford). Over a number of years he has been assiduous in trying to deal with the problem of paedophile sex offenders. We have had a number of opportunities, which we have sometimes missed, to try to firm up the framework of the legislation that we need to deal with them. As my hon. Friend rightly said, they are sometimes offenders whose high intelligence means that they have a unique capacity to wriggle off the hook, coupled with their unique capacity for self-denial about their behaviour.
On the issues of child pornography that are at the centre of new clause 2, we know from all the research that has been carried out that there is an absolute causal link between the use of child pornography and the commission of substantive offences. That is becoming so abundantly clear that it raises some extremely difficult questions about, for instance, pseudo-photographs and even cartoons, and the extent to which we are over-tolerant of those and reluctant to
prosecute those who may possess them. That is one of the serious matters that the House must go on to consider in future.
What my hon. Friend proposes strikes me as eminently reasonable, and we support him. We take the view that penalties must be sufficient to act as a clear incentive to provide the keys to the encrypted data. If, in fact, people can escape with a rap over the knuckles by not providing the data and thereby save themselves from a substantial term of imprisonment, it is clear that many will avail themselves of that opportunity and that such cases will become more frequent when encryption becomes more readily available.
So far as notification and powers of entry and examination are concerned, I have no difficulties in terms of human rights in saying that those who have been convicted of such offences can properly be placed under a regime on release—we know that we must do this for public protection—which may curtail some of the rights that others may enjoy. Entry into a person’s property to check whether there are clear signs that, notwithstanding whatever treatment that person may have received when they were in custody, the problems, which are of an wholly obsessional nature, are present and that that person is liable to commit further offences or is committing further offences such as downloading pornography or having pornographic material in their home seems to strike a reasonable balance. Whether the Government adopt new clause 10 or new clause 9, I hope that they respond positively, because we have raised the matter previously and the contribution by my hon. Friend the Member for Mole Valley is valuable.
I do not want to take up any more of the House’s time. The matter has no party political aspect, and I hope that the Government will provide some reassurance that they will take this opportunity. On a number of occasions, we have missed such opportunities, and those of us who want to see something done look at each criminal justice Bill to see whether we can hang something on it. There is an opportunity, and when the Bill finally goes through, I hope that we receive reassurance that some of the loopholes have been covered.
Mr. Byrne: I begin by associating myself wholeheartedly with the sentiments expressed by my hon. Friend the Member for Stoke-on-Trent, North (Joan Walley) and the hon. Members for Castle Point (Bob Spink) and for Mole Valley (Sir Paul Beresford). The hon. Member for Mole Valley welcomed the approach adopted by my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins) when he was responsible for these matters, which I intend to continue in future. The motivation behind all the new clauses is shared on both sides of the House.
I will assist my hon. Friend the Member for Stoke-on-Trent, North in obtaining an answer to her questions. I led for the Department of Health on the Safeguarding Vulnerable Groups Bill, so I am familiar with some of the issues that she has highlighted.
New clause 1 seeks to ensure that an offender who is involved in making and distributing indecent photographs of children or who commits a sexual offence—for example, rape, sexual assault or sexual
grooming—is not given a caution, with or without conditions, unless it is clear that that person is unlikely to commit further offences of that nature again. Conditional cautioning may not be considered for any of those offences, bar one, because they are all either-way or indictable-only offences and are therefore not included in the list of offences in the Director of Public Prosecutions guidance on conditional cautioning issued in December 2004.
Decisions about cautions cannot be taken by the police alone. The DPP’s guidance on charging issued in January 2005 makes it clear that police must refer all indictable-only offences to a prosecutor, which is a point that the hon. Member for Castle Point made forcefully. It is important that police officers have recourse to the specialisms that prosecutors can bring, and police cannot administer a simple caution in those cases at their own discretion.
The decision on the right course of action is framed by the simple guidance set out in the code for Crown prosecutors—the more serious the offence, the more likely it is that prosecution will be needed in the public interest. Indeed, one of the specific factors in favour of prosecution is listed in the code at paragraph 5.9:
“there are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct”.
A review of cases in this area has shown that there are truly exceptional circumstances, as the hon. Member for Castle Point acknowledged, in which prosecutors should be allowed to consider caution. The hon. Member for Beaconsfield (Mr. Grieve) alluded to that sentiment and provided some examples. One further example could involve an allegation of rape by one child against another, where a final warning is accompanied by packages of treatment in a programme of interventions designed by youth offending teams or social services to address the offender’s inappropriate sexual behaviour. In such truly exceptional circumstances, the offence may be suitable for disposal by a caution, but only providing that all the criteria are met.
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The hon. Member for Castle Point referred to some of the consequences of a caution. It is true that, in the absence of a charge, a caution is better than dealing with the case by no further action, or better than detecting but not proceeding. A caution has the benefit of ensuring that the offence at least appears on the person’s criminal record and can be cited in future proceedings. It is also significant that the offender will become subject to the notification requirements of the Sexual Offences Act 2003 for two years from the date of the caution or for one year in the case of a youth offender.
The hon. Member for Castle Point is right to say that it is important to exercise great care in taking the decision whether to caution those who admit offences of this nature, and that a trial is right in almost all such cases. The risk of re-offending is, of course, one of the key factors to take into account in the decision-making process. The existing guidance on cautioning and
charging, and the principles set out in the code for Crown prosecutors, provide the necessary safeguards.
For those reasons, we believe that it is desirable that the opportunity to use a simple caution for offences of this nature should continue to exist for extraordinary cases, but with reference to the important principle: the more serious the crime, the more important it is to prosecute. I think that the House is united in its view about the gravity of these offences.
Bob Spink: I welcome the Minister to his new position, which I forgot to mention earlier. I welcome his approach to the problem, but does he share my concern at the fact that, over the last two years alone, 807 cautions have been given, mostly for the taking of indecent photographs of children? Does not that massive increase give rise to serious concern?
Mr. Byrne: I share that concern and I was keen to understand the issue when it was raised in my briefing from officials at the Home Office. The assurance that I have been given is that the new codes, particularly the one for the Crown prosecutors, will confront those issues head on.
I would like to deal now with new clause 2, the ambitions of which are welcome. As the hon. Member for Mole Valley explained, the new clause is designed to increase the maximum penalty for an offence under section 53 of the Regulation of Investigatory Powers Act 2000—failing to comply with a requirement to disclose protected information or the key to it. The increase in the maximum penalty would apply in the circumstances set out in new subsection (6) of section 53 of RlPA, including where the offender has a previous conviction for possession of indecent images of a child.
The use of encryption is, as the hon. Member for Mole Valley pointed out, proliferating. Encryption products are more widely available and are integrated as security features in standard operating systems, so the Government have concluded that it is now right to implement the provisions of part 3 of RIPA, including section 53, which is not in force.
The threat to public safety posed by terrorist use of encryption technology was recognised in section 15 of the Terrorism Act 2006, which increased the maximum penalty for the section 53 offence to five years in a national security case. The Government will therefore publish for consultation a draft statutory code of practice for the investigation of protected electronic data and the exercise of powers in part 3 of RIPA.
We have previously given an undertaking to bring forward proposals in line with new clause 2 in the context of consulting on the implementation of part 3, and we shall shortly begin those consultations. We remain very sympathetic to what the new clause is designed to do, but we want to allow an opportunity for public consideration and comment on the proposals first, before implementing any legislative changes.
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