My Lords, I support the noble Baroness, Lady Fox of Buckley, and shall speak to her Amendment 105. I apologise that I was not able to participate at Second Reading due to attending another meeting.
I submit that sex registered at birth is a fundamental demographic and explanatory variable reflecting the reality of sex-based differences between men and women. Sex registered at birth is a powerful predictor of outcomes and is established throughout the criminal justice system as important in the analysis of offending and pathways into offending and risk.
Males and females offend at different rates, with males offending at significantly increased rates to females. In September 2021, women represented just 4% of the total prison population. Some offence categories, including serious violent and sexual offences, are only very rarely committed by females, with the overwhelming majority of these offences being committed by males. For example, in 2019, women comprised 2% of prosecutions for sexual offences, 16% of prosecutions for violence against the person and 7% of prosecutions for possession of weapons. The groups with the highest proportion of males prosecuted were sexual offences, at 98% male, and possession of weapons, at 93% male. Pathways into offending also differ between the sexes. There are strong links between women’s acquisitive crime—for example, theft and benefit fraud—and their need to provide for their children. For women, a history of male violence, including coercive control, frequently forms a distinct pathway into offending.
Sex registered at birth underpins the provision and planning of services within the criminal justice system, with the female offender strategy providing an evidence-based case to address the distinct needs of women in the criminal justice system. More generally, differences due to sex underpin risk assessment processes, the provision of offender treatment programmes, and the differing security categorisation and arrangements in the male and female prison estates. It is for these reasons, I suggest, it is fundamentally important that, throughout the criminal justice system, suspects’ sex registered at birth is recorded—for all offences, not just violent or sexual offences against women and girls.
However, despite the clear, established, evidence-based importance of sex registered at birth, throughout the United Kingdom police forces routinely record suspects’ gender identity, self-declared gender, legally recognised gender or transgender identity and not their sex registered at birth, including in the case of rape. I will not quote all the statistics which the noble Baroness, Lady Fox of Buckley, quoted on the freedom of information access requests acquired by Keep Prisons Single Sex, but it seems to be the case that in at least 32 of our
police forces there is a complete mishmash in recording the sex of offenders, and that leads to perverse consequences.
There is no evidence that either legally recognised acquired gender, where an individual has been issued with a gender recognition certificate, or self-declared gender or gender identity have even equivalent explanatory power. In fact, where evidence is available, it continues to demonstrate the superior explanatory power of sex registered at birth to offending. I am sure some will argue that, even if sex registered at birth is erased from data in this way, surely the number of times it happens is so small that there is no appreciable impact on the data overall, so why does it really matter and why get upset about it.
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My first response is that there is simply no way of ascertaining from the data collected by police forces how many suspects have their gender identity recorded in lieu of sex registered at birth, whether this is on the basis of self-declaration or subsequent to obtaining a gender recognition certificate. The number of suspects for whom sex registered at birth is not recorded could be small, as some police forces allege, or it could be large—we simply do not know. It could be stable across time, or it could be growing. There are no data collected that will allow us to answer those questions. That fact alone should give us pause in our considerations tonight. Even working on the assumption that the number of suspects for whom something other than sex registered at birth is recorded is small, this can still have a significant impact on the data. This impact is disproportionate across the sexes, and it will have the greatest effect on the data for females where suspects whose sex registered at birth is male are allocated to the female subgroup: this is because of the significance of sex registered at birth as a predictor of offending. Offending patterns differ significantly on the basis of sex registered at birth for all offences and for individual offence categories.
A good example that is available in the public domain will help to make this clear. In 2016, Claire Darbyshire, also known as Christopher, was convicted of murder at the Old Bailey; Darbyshire was recorded as female. We have been able to identify this as the conviction of a male offender who was recorded as female because the case was widely reported in the press and it is clear that Darbyshire’s sex registered at birth is male. Indeed, Darbyshire was imprisoned in the male prison estate at HMP Belmarsh. Recording this conviction as female elevated the number of females convicted of murder in that year by 5%. For offence categories that women rarely commit, the inclusion of just one offender whose sex registered at birth is male can have a marked impact. This was not a violent offence against a woman; Darbyshire’s victim was male.
This is not just about individual cases. I will not requote what the noble Baroness, Lady Fox, said, but that those 45 regional police forces reported a huge, 84% increase in female-perpetrated child abuse was extraordinary. That was an incredible increase in reported crimes that women rarely ever commit. We need further analysis to understand why this is and what needs to be done. However, because some police forces are not recording sex registered at birth, there are at least
three possible explanations: the same number of women are committing these offences but the victims are more able to step forward and make a report; or it could be there are more women committing these offences; or it is males who are committing these child sexual offences but they are being recorded in increasing numbers in the female statistics. We simply do not know which explanation, or combination of explanations, is responsible for that large increase of 84%, but we should get to the bottom of it and that is the important point of this amendment. Currently, the Home Office does not centrally mandate how police forces should record an offender’s sex; this amendment provides the opportunity to redress this omission.
When aiming to balance the legitimate functions of the state to capture core data about its citizens and the relevant privacy rights of individuals, we must be mindful that, for the criminal justice system, the aim is to produce accurate, relevant and reliable data on offending to support the analysis of patterns of offending, pathways into offending and risk of offending in order that this analysis is of relevance and utility to service development and management. Accurate, relevant and reliable data on offending is a legitimate public interest, and I hope the amendment succeeds.