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The amendments we have tabled maintain our overall aim but seek to address concerns that aspects of this clause, as currently drafted, could lead to inappropriate levels of disclosure. The amendments tabled by the noble Lord and the noble Baroness appear to be motivated by similar concerns but would have the effect of undermining the need for a consistent approach
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Amendment No. 176 seeks to remove the whole of subsection (4) of new Section 327A of the 2003 Act. Government Amendment No. 176A will remove subsection (4)(b) but we wish to retain subsection (4)(a), which indicates that the presumption to disclose arises whether or not the person to whom the information is disclosed requests the disclosure. It is important that the Bill makes it clear that the presumption to disclose does not depend on a request being made by a member of the public and that this clause relates to the proactive consideration of disclosure by MAPPA authorities while they are discharging their general duty to co-operate in the management of child sex offenders. I wish to emphasise at this stage that Clause 191 does not grant any new right to the public to receive information automatically on request.
With regard to government Amendment No. 176A, the MAPPA responsible authorities already disclose to those who are not related to the child at risk, such as head teachers, landlords and leisure centre managers and it is intended that the presumption to disclosure should apply to any member of the public where disclosure to them is necessary to protect the child, whatever their connection to the child. However, as the paragraph was only intended to clarify the position rather than encourage the authorities to introduce significantly more widespread disclosure than occurs currently, we are prepared to remove this paragraph from the Bill.
Amendment No. 177 would remove subsection (5)(b) of new Section 327A which provides that any MAPPA responsible authority, when making a disclosure, will be able to place conditions on the recipient to prevent that information being disclosed to others. Such conditions may well be necessary and the ability to impose these conditions will be an important safeguard against the inappropriate dissemination of information. It is necessary therefore to retain this aspect of the clause. If there is a breach of conditions in keeping information confidential, there is no specific penalty—the noble Lord, Lord Thomas of Gresford, raised this—provided in the clause, but an action can be brought for breach of confidence in the civil courts. This may result in an injunction being made. Existing communal penalties could also be available if it was felt that that was appropriate. This is mainly to put a block on people so that they understand that they should not just talk loosely about this. That is the prime reasoning behind it.
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We acknowledge concerns that the wording of the presumption as currently drafted could lead to unduly widespread disclosure, which was never the Government’s intention. However, we have tabled government Amendments Nos. 175A and 175B in order to address these concerns and to make clearer the circumstances in which the presumption will apply. Our amendments have been developed in consultation with the NSPCC and Barnardo’s, and address concerns that they have raised with us during the passage of the Bill. The NSPCC and Barnardo’s support these amendments and we are grateful for their contribution.
If government Amendments Nos. 175A and 175B are agreed by the Committee the presumption to disclose would arise only if a child sex offender managed by a MAPPA responsible authority in a particular area poses a risk in that or any other area of causing serious harm to any particular child or children, or to children of any particular description, and the disclosure of information is necessary to protect the particular child or children, or the children of that description. This is a reasonable basis for such a presumption and will help to ensure that the MAPPA authorities have a clearer indication of the circumstances in which disclosure should be made.
Government Amendment No. 177A is a technical amendment to amend Schedule 34, which inserts new Schedule 34A into the Criminal Justice Act 2003. It will ensure that a service conviction for an attempted or other secondary or inchoate child sexual offence is relevant for the purposes of defining a child sex offender, and determining what convictions should be disclosed under the presumption.
I reiterate that the NSPCC and Barnardo’s have welcomed our amendments and they oppose Amendment No. 177. I hope that the noble Lord, the noble Baroness and other speakers will consider that our amendments address their concerns. We are not able to amend the Bill precisely as they would like, because to do so would undermine key aspects of the intention of this clause, but we believe that our amendments move in the same direction as they would wish. I hope that our amendments will persuade the noble Lord to withdraw his amendment.
Lord Neill of Bladen: As written, new Section 327A(1) of the Criminal Justice Act 2003, under Clause 191 of the Bill, states that the responsible authority must,
As written, new Section 327A(2) has this presumption in it. Even if that is altered in language, something along those lines will be there. I thought that I understood the Minister to say that there is no sanction for enforcing this, while under the old law mandamus a local authority could be compelled to carry out its duty. Is he saying that there is no way that any member of the public could enforce this provision and is there no criminal sanction? Is it an unenforceable “must”?
Lord West of Spithead: No criminal proceedings or anything can be taken against a MAPPA authority if it does not fulfil these statutory obligations. I shall
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Lord Mayhew of Twysden: I wish to ask a question that is not intended to be a trick question and may turn out to be a silly one. What are the circumstances in which a presumption may be rebutted? I can understand a requirement that particular action should be taken, but where one comes across a presumption that it shall, one expects to see an explanation as to how that presumption may be rebutted. Perhaps that can be answered at some later time, if not today.
Lord West of Spithead: The noble and learned Lord raises an interesting point, to which I do not have an exact answer. I would like to come back in writing on that point. As I understand him, the noble and learned Lord is asking if this relates to MAPPA and whether it should rebut something, but I am not quite clear about his question.
Lord Mayhew of Twysden: Wherever a presumption is targeted, one looks to see whether there is a means by which that can be rebutted. One assumes that there can be, but at the moment—and I dare say that this is my fault—I do not see where that arises or how that is explained.
Lord West of Spithead: I think that the noble and learned Lord is probably absolutely right and that it probably is done on a case-by-case basis, but if I may I will get back to him in writing on that.
Baroness Falkner of Margravine: I want to clarify the Minister’s remarks on Amendment No. 177. As I understood him, he said in response to our concerns about conditions that would be imposed on those people who were given the information that there would be no sanctions against those who breached the conditions on non-disclosure. Did the Minister intend to say that?
Lord West of Spithead: Perhaps I did not really make myself clear to the noble Baroness. If there is a breach of the conditions to keep information confidential the clause provides no specific penalty—but action can be brought for breach of confidence in the civil court, which may result in an injunction being made. Existing communal penalties could also be available. That will have to be looked at on a case-by-case basis, but primarily this amendment is to reinforce the realisation on these people that this is extremely important. We do not want this to go wider, but in those areas there could be some penalty on just that basis.
Lord Thomas of Gresford: I am grateful to the Minister for his considered reply. We are also very grateful for the way in which the Government have moved from the wide provision originally set out in Clause 191 after consulting with the organisations concerned about children. However, we have not quite
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As for subsection (2) of new Section 327A, the noble and learned Lord, Lord Mayhew, rightly raised the difficulties in using the word “presumption”; other criticisms have been made of my English. Drafting on my knee, I wonder whether it might not be better to say that in a case mentioned in subsection (3), a responsible authority may, in its discretion, disclose information in its possession about the relevant previous convictions of the offender. I see that the noble Lord, Lord Monson, agrees with that quick drafting in order to accord with the rules of the English language.
On enforcing conditions against an individual, it is not attractive to propose that the way to do that is to take them to court for breach of confidence and to obtain an injunction against them. For a person to be involved in court proceedings of that nature seems a sledgehammer approach.
The Earl of Onslow: Would the very fact of going to court not also publicise the damage that has already been done? I think that we are concerned that that damage will cause the demonstrations and all those things with which we associate Megan’s law.
Lord Thomas of Gresford: That is a valid point, because only in very exceptional circumstances will the court sit in camera to consider any issue. I do not know whether it would be possible, in circumstances like these, to use initials or something that might conceal the identity of people concerned.
Obviously, this issue requires further thought on all sides. For the moment, I will withdraw my amendment; I express my gratitude for some movement from the Government. It would be useful to have further conversations with Ministers to get a little nearer to a satisfactory result. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord West of Spithead moved Amendments Nos. 175A to 175B:
Clause 191, page 135, line 2, leave out “children generally or any child” and insert “any particular child or children or to children of any particular description”
Clause 191, page 135, line 6, leave out “children generally or any child” and insert “the particular child or children, or the children of that description,”
On Question, amendments agreed to.
[Amendment No. 176 not moved.]
Lord West of Spithead moved Amendment No. 176A:
On Question, amendment agreed to.
[Amendment No. 177 not moved.]
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4 pm
Baroness Falkner of Margravine moved Amendment No. 177ZA:
“( ) Where the responsible authority makes a disclosure about any child or young person below the age of 18 under this section—
The noble Baroness said: I would like to acknowledge that the amendment is supported by the NSPCC, Barnardo’s, the Lucy Faithful Foundation and the NCH. It expresses our view that there are inadequate safeguards for those children who commit sexual offences against other children. Our concern is based on the inappropriateness of using adult-focused legislation that, in terms of disclosure, treats young people as adult sex offenders.
In our early debates on Part 1, which concerned the bulk of measures regarding young people, many noble Lords spoke about the appropriateness, or otherwise, of recognising that young people, by virtue of their youth, should be treated differently. Our desire to see a difference in treatment between adults and young people is not simply based on age alone. As we know, large numbers of young people who encounter the criminal justice system come to it from backgrounds of great disadvantage, including factors such as learning difficulties, behavioural problems, domestic violence, sexual abuse or essentially having the misfortune to come from a dysfunctional family.
In the case of sex offenders, even if such factors do not figure as mitigating ones in their defence, their moral and emotional development may be such that they do not, or cannot, rationalise about their wrongdoing and the harm that they may have inflicted on the other child or young person. Therefore, they may be extremely vulnerable and the interventions employed by the state in regard to their crime require a different approach from that needed for adults.
I turn to some key factors about young people who display sexually harmful behaviour. First, there are concerns about the scale of the problem. According to the charities which support the amendment—and I have mentioned them—we do not know how many children display sexually harmful behaviour. It is likely to be underreported by parents, carers and professionals working for children because a great deal of harm can come from simply suspecting a young person of something that they may not be able to validate or prove. Moreover, there is no central method of data collection on young people who sexually harm. Research from criminal justice statistics shows that between 25 per cent and 40 per cent of all alleged sexual abuse involves young perpetrators. I understand that approximately one-third of sexual offenders in contact with the criminal justice system each year are adolescents.
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We have the profile of young people who display sexually harmful behaviour, and we know that in terms of this profile a significant proportion of service users across programmes are described as having a learning disability. I have already touched on that point, but it is worrying that we do not know what the parameters of the problem are. We find that the majority of these children and young people have been or are being sexually, physically and/or emotionally abused themselves.
Furthermore—and this is particularly pertinent to the clause under review— consistent findings indicate that the majority of children who display sexually harmful behaviour do not go on to commit sexual offences as adults. In other words, where there are interventions in the aftermath of committing these offences, there is every hope that the behaviour might be changed. In fact, the success rate for interventions among young offenders is higher than that for adults.
Moving on to specific concerns about the use of disclosure in relation to children and young people, we understand that the current MAPPA guidance makes no reference to the disclosure of an offender’s details where the individual is under the age of 18. We consider this to be a significant shortcoming. We believe that safeguards must be in place when disclosure of information about children is made, including specific guidance. The consequences of disclosure can be devastating for children and can lead to bullying, harassment, discrimination and the loss of future opportunities. It may be counterproductive to disclose the offence details of young people where the offending is in the past and where they have received treatment and have been assessed as no longer presenting a risk. Disclosure after rehabilitation can only lead to harm and may bring little future risk deferral. Children have a much greater ability to develop out of their offending behaviour and disclosure may mitigate against change by labelling and stigmatising them.
I turn now to the proposals for the four pilot programmes that will deal with adult sex offenders. Even if the pilot studies are successful, we nevertheless wish to be reassured that there would have been an empirical demonstration that the system can operate safely in relation to adults before it is extended to children and young people. I beg to move.
Lord West of Spithead: I accept the spirit of this amendment and acknowledge the particular issues that arise when a MAPPA authority is considering the disclosure of information on the convictions of a child sex offender who is under the age of 18. The noble Baroness is right that this often concerns people who have been abused themselves over prolonged periods and who are extremely vulnerable. It is important that the welfare of young offenders is taken into account in these circumstances, but equally I know we all accept that the risk posed by young sex offenders to others still needs to be managed.
The processes established by the existing duty to co-operate under Section 325 of the Criminal Justice Act 2003 ensure that such issues will be considered and assessed. In particular, social services and youth offending teams are under a duty to co-operate with
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Any young person who becomes the subject of a disclosure would have been referred to MAPPA by the youth offending team who would be responsible for the management of that particular case and involved in the decision and the ongoing risk management plan. MAPPA does and will consider the children’s interests, as required by Article 8 of the Human Rights Act 1998. Youth offending teams should be involved in any disclosure decisions and the existing legislation clearly envisages MAPPA managing young offenders. Any young person who becomes the subject of a disclosure would, as I say, have been referred by the youth offending team.
While I accept the intention of the amendment—I discussed this in some detail with my team—I did not feel it necessary to require the involvement of local safeguarding children’s boards. The noble Baroness has spoken very eloquently on this point and I would like to think further about it. Perhaps we can arrange a meeting before Report. I might possibly be convinced but I do not want to have unnecessary legislation in the Bill when this has already been covered. On that basis I ask the noble Baroness to withdraw the amendment.
Baroness Falkner of Margravine: As the noble Lord recognised, our concern is to ensure that the safeguards are adequate. While we understand that the youth offending teams would bear in mind mitigating circumstances in making a decision about disclosure, we welcome the Minister’s idea of considering this matter further and going into some examples that we might have of how the system would operate. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 191, as amended, agreed to.
Schedule 34 [Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”]:
Lord Bach moved Amendment No. 177A:
“and section 48 of that Act (attempts etc. outside England and Wales) applies for the purposes of paragraph (b) as if the reference in subsection (3)(b) to any of the following provisions of that Act were a reference to that paragraph”
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