Criminal Justice and Immigration Bill

A number of amendments have been tabled to Clause 191 both by the Government and by the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble Baroness, Lady Falkner. I venture to suggest that we share the same overall aims for the clause. We wish to ensure the effective protection of children from sex offenders while wishing to guard against the perils of inappropriate and unduly widespread disclosure, for the reasons that have been given by a number of Members of the Committee. Those aims are also shared by the organisations and agencies which we consulted during the review of the protection of children from sex offenders, the conclusions of which, including the recommendation to introduce a statutory duty to consider disclosure, were welcomed by those organisations. In direct answer to the noble Lord, Lord Thomas of Gresford, this is not Megan’s law. It builds on the existing practice of controlled disclosure, and we took account of the NSPCC representations during the review and the passage of the Bill. It might be useful to give the example of an offender who is convicted of sexual assault against a child and becomes subject to the notification of requirements imposed by the Sexual Offences Act. That would place him under the management of MAPPA. The offender meets a new partner—a single mother with young children—and subsequently moves in with her. Under the notification requirements, he is obliged to inform the police of his new address, which he does. This being brought to the police’s attention triggers a risk assessment as part of the MAPPA process. It is identified that the offender poses a risk to his partner’s children who also reside at his new address and under the new duty imposed by this Bill, the MAPPA responsible authority is under a duty to consider disclosure. MAPPA has identified that there is a risk to children and concludes that disclosing information on this risk to his new partner is necessary to protect these children from serious harm. Disclosure is made in accordance with all the relevant principles to ensure that this is done sensitively and in a planned and appropriately managed way, taking account of all the risks, including to the offender. I put that in just to give a flavour of the way this would apply. We acknowledge that there are concerns about the nature of this clause, motivated particularly by the fear that it may lead to disclosure of information in inappropriate circumstances or to an unnecessarily wide extent. I wish to emphasise that this is not our aim. Our aims, as we made clear in the review, are to extend the use of controlled disclosure where it is an appropriate and necessary response to a risk of serious harm to a child or children to ensure that there is consistency—consistency is important—in the practice of disclosure and to ensure that the decision to disclose results from a formalised and auditable process. When these provisions were debated in another place, there were some concerns about the liability imposed on MAPPA authorities, for example in circumstances where they decided against disclosure. Consequently, I think it would be helpful for me to make it clear that the amendments to the Criminal Justice Act 2003, which Clause 191 will introduce, are not intended to impose liability on the MAPPA authorities for breach of their statutory duty to consider disclosure in accordance with these provisions or for a failure to disclose, despite the presumption applying. 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 to the practice of controlled disclosure and would also remove safeguards against inappropriate disclosure. Amendment No. 175 seeks to provide the Multi Agency Public Protection Arrangements authorities, commonly known as MAPPA, with the discretion to disclose information about convictions of child sex offenders to members of the public. These authorities already have this discretion and use it where appropriate in accordance with the statutory guidance. This amendment therefore would not provide further assistance to the MAPPA authorities in determining the circumstances in which information should be disclosed. Providing such assistance with the aim of ensuring consistency is the purpose of Clause 191. 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. 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.