Draft Offender Management Act 2007 (Commencement No. 6) Order 2013
The Committee consisted of the following Members:
† Alexander, Heidi (Lewisham East) (Lab)
† Birtwistle, Gordon (Burnley) (LD)
Blears, Hazel (Salford and Eccles) (Lab)
† Blunt, Mr Crispin (Reigate) (Con)
Bottomley, Sir Peter (Worthing West) (Con)
† Buckland, Mr Robert (South Swindon) (Con)
† Chapman, Jenny (Darlington) (Lab)
† Dinenage, Caroline (Gosport) (Con)
† Donohoe, Mr Brian H. (Central Ayrshire) (Lab)
† Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)
Healey, John (Wentworth and Dearne) (Lab)
† James, Mrs Siân C. (Swansea East) (Lab)
† Lumley, Karen (Redditch) (Con)
† Newmark, Mr Brooks (Braintree) (Con)
Paisley, Ian (North Antrim) (DUP)
† Wright, Jeremy (Parliamentary Under-Secretary of State for Justice)
David Slater, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Tuesday 2 July 2013
[Dr William McCrea in the Chair]
Draft Offender Management Act 2007 (Commencement No. 6) Order 2013
2.30 pm
The Parliamentary Under-Secretary of State for Justice (Jeremy Wright): I beg to move,
That the Committee has considered the draft Offender Management Act 2007 (Commencement No. 6) Order 2013.
May I say what a pleasure it is to serve under your chairmanship this afternoon, Dr McCrea?
Sections 28 and 29 of the Offender Management Act 2007 provide for the polygraph testing of sexual offenders. Specifically, they enable polygraph testing to be included as an additional licence condition for adult sexual offenders. The 2007 Act required the provisions to be piloted in specified areas before full implementation. The pilots took place in eight probation trusts from January 2009 to March 2012 and, as I shall explain, were successful. The purpose of the order is to commence the provisions fully to enable polygraph testing to be included as a licence condition for sexual offenders throughout England and Wales, rather than just in the pilot areas.
A polygraph is a test that indicates whether someone may be lying. More specifically, it is a device that measures changes in heartbeat, breathing rates and sweating. Changes in those activities can indicate whether an individual is telling the truth in response to set questions.
The management of sexual offenders in the community is rightly of serious concern to the public. Having an objective assessment of how truthful or otherwise an offender is being with his or her probation officer has the potential to make supervision more effective and hence may reduce the risk of further offending. The potential for polygraph testing as a tool for enhancing the effectiveness of the statutory supervision of sexual offenders was considered in the Home Office’s “Review of the Protection of Children from Sex Offenders”, published in 2007. It was that review which recommended the piloting of polygraphy as a licence condition.
Following the commencement of sections 28 to 30 of the 2007 Act, polygraph testing was piloted in the east and west midlands from January 2009 to March 2012. In the pilots, adult sexual offenders released on licence into the pilot area had a condition to comply with polygraph testing included in their release licence. Sexual offenders were polygraph-tested during supervision to help assess whether they were complying with their licence conditions and whether their level of risk had changed. The polygraph was, of course, just one component of their supervision. Offenders were also subject to the
usual supervision process, including regular reporting to a probation officer, possible attendance on an accredited sex offender programme, help with substance misuse problems and assistance with accommodation or employment.Polygraph testing was provided under a contract with the university of Newcastle, and an independent evaluation study of the pilots was carried out by the university of Kent. The aim of the pilots was to find out whether polygraph testing was a useful additional tool for probation officers in their management of sex offenders on licence in the community. In other words, the pilots were intended to answer the question whether polygraph testing is effective in helping to protect the public from serious harm.
The commencement order made under section 41 of the 2007 Act defined the areas where the pilots would take place and their duration. The intention was that, on completion of the pilots, Parliament would consider their efficacy and whether polygraphy should be rolled out across England and Wales. Any extension or expansion of the scheme may be made only with Parliamentary approval. Now that the pilots are complete and have been evaluated, I am pleased to report that they were successful.
I should, at this point, correct an error in the explanatory memorandum originally provided to the Committee. The explanatory memorandum stated that 599 offenders from seven probation trusts were subject to mandatory polygraph testing during the pilot. In fact, the correct figures are that 332 offenders were subject to mandatory polygraph testing across eight probation trusts. I apologise to the Committee for the error. During the period of the pilot, most offenders were tested more than once, so 606 tests were carried out in total. On discovery of the error, I arranged for the original explanatory memorandum to be withdrawn and a corrected version to be laid in its place, which I hope is the one available to Committee members today.
Outcomes for the offenders who were subject to mandatory polygraph testing were compared with those for a similar group of offenders who were supervised in probation areas that did not use the polygraph as part of supervision. The evaluation found that the offenders subject to polygraph testing made more disclosures that led to changes in how they were managed than the comparison group. Those are referred to in the evaluation as “clinically significant disclosures”. In other words, information disclosed as part of the polygraph process led to probation offender managers taking additional actions to manage the offender’s risk and to improve compliance with their licence conditions. That included, for example, changing the focus or frequency of supervision or, if combined with further information, recalling the offender to custody.
The explanatory memorandum provides a link to the final published report of the evaluation study, which gives full information on the effectiveness of mandatory polygraph testing during the pilot. In summary, the report concludes that polygraph testing has the potential to lead to more informed and effective supervision by probation officers.
There are a number of misconceptions about what a polygraph is and how it is used. Polygraphy is often seen in the entertainment industry, and if searched for on the
internet, sites will be found that say that it does not work or that give advice on how to beat it. Opinion is divided about how accurate a polygraph is in detecting deception, but the National Research Council indicates that the polygraph can obtain levels of accuracy of around 80% to 90%. That is clearly not the same as 100% accuracy, but it is well above chance. As part of the supervision of sex offenders, it is not the detection of deception that is the critical factor. It is the information disclosed by the offender before, during or after the polygraph test, which is used to inform decisions about their supervision. In other words, it is less about detecting lies and more about gathering useful information to properly manage risk.For that reason—I want to make this point absolutely clear—no offender will be recalled to custody as a result of a polygraph test alone. An offender would be recalled to custody only if there were additional information that that offender was not complying with licence conditions or that their risk to the public was increasing. In many cases, such information was volunteered by offenders in the pilots when they were presented with the results of their tests. Nor will the polygraph be used to determine guilt or innocence. Indeed, section 30 of the Offender Management Act 2007 specifically prevents any information obtained under the polygraph from being used in criminal proceedings against the offender. Breach action in relation to polygraphy, including recall to custody, could be instigated only if offenders either failed to attend a polygraph test or, as a result of challenges from the test, subsequently disclosed information indicating that they were in breach of any licence condition or were an increased risk to the public, or failed to comply with the instructions of the polygrapher, including attempts to beat the polygraph through use of counter measures.
The Committee may be interested to know—I hope not too interested—that the most common supposed counter measures, which include fidgeting, biting the tongue and clenching the toes, will be detected by the polygraph, as they generally result in changes to the physiological measures which the polygraph is designed to assess.
In summary, the polygraph test is used simply an additional source of information by probation offender managers, but it is a valuable one that, as I have said, helps offender managers to manage offenders more effectively in the community.
Of course, if the polygraph test is to be useful, it is important that it is carried out in a properly regulated manner and only by suitably qualified and trained staff. During the pilots, the qualifications of the polygraph examiners and operating requirements for each polygraph test were governed by the Polygraph Rules 2009. The rules were reviewed in light of learning from the pilots and remain fit for purpose if, as I recommend to the Committee, polygraph testing is rolled out more widely.
In conclusion, protecting the public is our overriding priority. In particular, we are determined to protect children and adults from sexual offending. To achieve that, 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 them in 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 are therefore seeking to make polygraph testing available as a licence condition for sex offenders in England and Wales. The draft order will enable us to do that.2.40 pm
Jenny Chapman (Darlington) (Lab): It is a pleasure to serve under your chairmanship, Dr McCrea.
As the Minister has explained, the order deals with the commencement of sections 28 and 29 of the Offender Management Act 2007, which allow for polygraph testing to be included as a licence condition for certain sex offenders. Keeping the public safe from dangerous sex offenders is a priority for any Government. The probation service monitors thousands of sex offenders in the community, and the most recent proven statistics put the reoffending rate for that cohort at 18%.
Where an offender is released on licence, the quality of their supervision is of the utmost importance to protecting the public and to preventing more people from becoming victims of crime. Polygraph testing is intended not as a base of evidence for court but as a tool better to facilitate the assessment and management of an offender’s behaviour after release.
The pilot for mandatory polygraph testing of sexual offenders was started by the previous Government, with the intention of exploring how new technologies could be introduced to strengthen offender management. It was promised at the time of legislating for the pilot that the condition would be rolled out only if it was shown that polygraph testing was a useful and objective additional tool to assess and manage the risk posed by sex offenders.
We are pleased to see the positive evaluation that the pilot received. As the Minister noted, offenders in the pilot were proved twice as likely to disclose information significant to their risk of harm. Offender managers involved in the scheme were statistically more likely to take preventive safeguarding action, and managers reported that they considered polygraph testing to be a useful tool to manage offenders more effectively.
It is right that probation officers are afforded every effective tool that we have to support their work of managing the risk of offending in our communities. We are glad to support the order today and to see the tool rolled out further to probation teams across England and Wales.
I have one question for the Minister. The pilot worked with all sex offenders released on licence. The Government have chosen instead to include the condition for high-risk offenders only. I understand the reasons for that choice, but the evaluation has shown that polygraph testing was also effective with low and medium-risk offenders, and that the number of significant disclosures increased for every risk level. Will the Government consider expanding the use of testing to other risk categories in the future?
2.43 pm
Jeremy Wright: I am grateful to the hon. Lady for her support for the order. As she said, the credit for it is shared, because the pilots were begun under the previous Government, and quite properly so.
The hon. Lady asked about the distinction that we have made between the coverage of the pilots, which was all sexual offenders, and the coverage that we intend the provisions to have from now on. She will appreciate that the order will permit all sexual offenders to be subject to the requirement, but that our intention is to issue guidance to say that at this point, it should apply only to offenders who are at high risk of both causing serious harm and reoffending.
The justification for that is twofold. First, there is a need to be proportionate. As with all licence conditions, we need to demonstrate that the condition being imposed is necessary and proportionate in the circumstances of
the individual offender. We think that the case is much stronger for the offenders whom we intend to issue guidance to cover than for all sexual offenders.Secondly, there is a cost implication. We have calculated that the cost of rolling out the provisions to the offenders whom we anticipate will be included—some 980 in total—will be in the order of £3 million. The cost of including the other 75% of sexual offenders would be considerably higher. It is those two considerations that have led us to our judgment.