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Crime and Courts Act 2013 (Commencement No. 18) Order 2018

Volume 794: debated on Wednesday 21 November 2018

Motion to Approve

Moved by

That the draft Order laid before the House on 13 March be approved.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for giving me the opportunity to return to this important topic. I should also like to thank all noble Lords for their contributions as we move on.

Electronic monitoring using radio frequency technology has been used nationally as a key element of our criminal justice system for almost 20 years. It has proved to be an effective tool to manage offenders’ compliance with curfew requirements. In any one year, 60,000 people are so monitored and at any one time there are around 11,000 subjects monitored on curfew. For those released on prison licence, legislation also allows for the subject’s location to be monitored either to support a requirement of the licence or to monitor an offender’s whereabouts. The latter is referred to as a stand-alone location monitoring requirement; that is, it is not linked to another requirement.

Furthermore, legislation already exists to permit location monitoring to be used as part of court bail or a community sentence to monitor compliance with a requirement such as an exclusion zone. The order before your Lordships’ House today, which has already been debated in the Moses Room, seeks to commence legislation that will allow courts to impose a stand-alone location monitoring requirement as part of a community sentence when it is considered to be appropriate, proportionate and necessary to do so. Using an electronic GPS tag, an offender’s location will be tracked by satellite using technology similar to that of a satnav. The ankle tag will record the offender’s position and, at frequent intervals, send that data to a monitoring centre via a mobile network. The location data will be retrospective.

The case for stand-alone location monitoring has been supported by two pilots, the first of which was run by the Ministry of Justice and the second by the London Mayor’s Office for Policing and Crime, or MOPAC. The first pilot ran for 18 months across Bedfordshire, Cambridgeshire, Northamptonshire, Nottinghamshire, Hertfordshire, Leicestershire, Staffordshire and the West Midlands. Of the 586 subjects that were tagged, 161 were given a stand-alone location monitoring requirement. Of those, 107 also had an electronically monitored curfew. The tagging was considered to be necessary and proportionate by a court, or a prison governor, having due regard to advice from probation practitioners. The remainder of the subjects had location monitoring imposed to monitor compliance with another requirement; for example, an exclusion zone.

The second, smaller-scale pilot run by MOPAC in the London area was initially intended to run for 18 months, but has now been extended for a further 18 months and will conclude in September 2019. As at the end of October, 100 of the 104 community-sentenced subjects in the MOPAC pilot have been given a stand-alone location monitoring requirement by courts and more are expected. This indicates that decision-makers recognise the benefits of using stand-alone location monitoring in the right circumstances. Indeed, criminal justice boards in the areas included in the first pilot were very keen to see a continuation of location monitoring in general and wrote letters of support.

This has been mirrored by feedback received from offender managers and some offenders during both pilots. That feedback indicates that stand-alone location monitoring provides offender managers with more information on offenders’ movements, allowing for constructive conversations to take place regarding their behaviour, helping to manage the risk of reoffending, aid rehabilitation and help those they supervise to lead law-abiding lives. It can motivate subjects to engage in their rehabilitation, attend addiction therapies, turn up for work or training and to stay away from those people and places that would have a negative influence on their lives. In some cases, it could also provide enough assurance to enable courts to impose a community sentence as an alternative to custody, thereby reducing prison numbers. Let me read to you a comment received from one offender:

“It’s the fact that you can continue to provide support for the people that you care for and you can still work, you can still be around, you can still be a brother, a friend, you can still be a dad. You can still be all those things whilst on GPS that you can’t if you’re in custody”.

This feedback is supported by the independent evaluation of the first pilot, conducted by NatCen Social Research, which will be published shortly. One of the key findings is that partner agencies, probation, police, prisons and courts were keen to use location monitoring to help monitor and manage compliance with bail, sentence and licence conditions. The report highlights that location monitoring was felt to support the effective management of offenders in the community in four key ways: supporting offender rehabilitation; facilitating risk management; helping to inform decisions about whether a wearer should be recalled to custody or court; and providing evidence either to exonerate them or to link them to a crime.

Lessons have been learned from both this pilot and that of MOPAC, as well as from MOPAC’s ongoing pilot, to inform the implementation of the new electronic monitoring service. Those lessons have been incorporated into the ministry’s programme for delivery. For example, subjects reported issues with keeping the tag charged. As a result, the tag will come with a portable charger and subjects will receive alerts when their tag’s battery needs charging. The new service will have an initial phased release at the end of 2018 in the north-west and the Midlands, which will start to introduce at scale the availability of GPS tags. That will be augmented by a further release in the summer of 2019, providing greater functionality for service users, including a portal where updates and alerts can be viewed online.

This order builds on legislation which is already in place regarding electronic monitoring. The pilots have worked well and are working well, and we look forward to seeing GPS tagging in the right circumstances as soon as it is appropriate. I beg to move.

Amendment to the Motion

Moved by

To move, as an amendment to the above motion, at end to insert “but that this House regrets that the Order provides for a new type of standalone electronic monitoring requirement for community orders and suspended sentence orders before the results of the ongoing pilot schemes are known”.

My Lords, my original objection to this statutory instrument was based upon the fact that its purpose was to introduce a major difference in the use of electronic tags which affected the liberty of the subject without awaiting the results of the pilot schemes which were then being carried out in two major areas in the country. I believe in evidence-based policy and I thought that the Government took the same view.

As the Minister said a moment ago, electronic tags have been used within the criminal justice system for some 20 years since 1988, but only to monitor offenders’ compliance with a curfew. It was possible to confirm whether an individual was at a particular address at a particular time. The introduction of GPS monitoring differs considerably. The tag remotely captures and records information on an individual’s whereabouts at all times. Signals are received from satellites and are communicated via a mobile phone network to a case management system.

There was a pilot scheme in Greater Manchester, Hampshire and the West Midlands between 2004 and 2006. It was not a complete success. One of the modes of tracking was called hybrid tracking, which involved the delineation of geographic exclusion areas: if the offender moved into an exclusion area, a signal would be sent to the case management system immediately. This was the sort of tracking that is now envisaged in this statutory instrument. The conclusion of the 2006 report said:

“Although there may be a role for this form of hybrid tracking in providing an added layer of protection for victims assessed as particularly at risk, the limited use to which it was put during the pilots meant that no firm conclusion could be reached. On the other hand, if the main purpose of satellite tracking is to provide information on offenders’ whereabouts in order to challenge them about their movements and help them avoid dangerous situations, or to provide robust evidence of violations of exclusion zones, then this can be achieved through ‘passive’ tracking”—

that is to say, not this complicated system—

“and may not even require the daily flow of information from the monitoring company to offender managers that was made available in some areas during the pilots”.

That 2006 report also found that active tracking, whereby an offender’s general movements are followed in real time, could not be used because of the high level of resources which would be needed for such an operation.

Also in that report in 2006, probation officers, police officers and youth workers were generally less enthusiastic about the way that the satellite tracking equipment had worked. They were particularly worried about GPS drift—where GPS plots are, for a short period of time, wildly aberrant—and signal loss. Both created uncertainty in their minds. Had the offender tampered with the equipment, had the equipment broken down in some way, or had the signal been blocked by a tall building or some other obstruction? Their other concerns were that maps of offenders’ movements were sometimes unclear, insufficiently detailed or difficult to interpret; that battery life was limited; that ankle tags frequently needed changing; that communications between offender managers and the monitoring companies were not as good as they ought to be; and that tracking units were intrusive and infringed civil liberties. That was the position in 2006. One would have thought that the current pilot schemes should have been completed and brought before this House before introducing the system more widely.

The scheme in 2004 to 2006 was therefore not followed up in the light of the comments received. GPS tags have been used in a number of situations since, specifically for integrated offender management schemes—IOMs—but on a voluntary basis only. The case for their use is not open and shut, and the expense for hybrid or active tracking where offender managers feel it necessary to carry out immediate action is considerable. One would have thought that the Government would have awaited the findings of the recent pilots before introducing as part of the criminal law of England and Wales a scheme that is similar but which differs in one very important respect: the proposal for compulsory, not voluntary, tagging on a large scale.

On Monday, the Minister helpfully provided me with an embargoed copy of the report; I am grateful to her for that and for the courteous letter that accompanied it. I read and digested its contents. Unfortunately, because of the timing of this Motion to approve the statutory instrument, I cannot comment on its findings or conclusions. When will it be published? When could I comment on it? When the DPRRC considers the appropriate course for parliamentary scrutiny of the exercise of powers granted to Ministers in a Bill and advises the House, it does so in the belief that the use of the affirmative procedure will give the House an opportunity to raise any matters of concern on the evidence. There is evidence—there is an embargoed report—yet we proceed tonight without that report having been published. It is not available to Members of this House for comment.

However, I think that I am entitled to raise a number of questions without reference to the report’s contents. First, has electronic monitoring been shown to have any significant impact on the rate of reoffending? The 2004-06 study followed offenders for up to five months after the end of their tagged period. Its report stated that, during that limited period,

“26 per cent … of satellite-tracked offenders were either reconvicted for an offence committed during their period of tracking … or while unlawfully at large following their recall/revocation … or were considered by their offender managers … to have committed an offence during their period of tracking”.

The report also stated:

“If a longer period had been available, more convictions would almost certainly have been detected”.

Secondly, some people are vulnerable and lead chaotic lives. There are strict conditions attached to the use of tags: offenders have to be able to charge the tags for two hours a day in a docking device, and failure to do so is a breach that can result in punishment. Anybody who has to charge their phone every night knows that it is not always possible to make sure that you have done it. Exclusion zones and other conditions have to be agreed and communicated to the offender. Does an offender leading a chaotic life fuelled by drugs or alcohol have the capacity to understand and comply with orders of this sort?

Has a suitable design of the tags been developed? Back in 2006, there was considerable criticism of their comfort, the ease with which they could be removed and so on. Most importantly, will the resources be made available? What a familiar comment that is. The 2006 evaluation identified a mismatch between what the pilot areas sought from satellite tracking and what the monitoring companies had been resourced to provide. With such exclusion zones and conditions, there obviously has to be 24-hour monitoring of the central system alongside a field team that can be sent out to deal with any breach that occurs during that 24-hour period.

Finally, what steps are being taken to inform and advise magistrates, judges and prison staff so that they may have confidence in the system? I very much regret that the Motion has been brought forward at this time without the report being publicly available for your Lordships and everybody else to read and comment on. I beg to move.

My Lords, the story of the Government’s policy on electronic tagging over the past seven years has been one of a prolonged disaster. Of course, the Minister is not to blame for that. She has tried to be helpful, although today’s letter—referred to by the noble Lord, Lord Thomas—warning recipients not to quote the contents of a document she sent us labelled “Embargoed” was, to put it mildly, unfortunate. I remain grateful for her attempt to be helpful, even if the Ministry of Justice appears to be vying with the Home Office in the competition to be seen as the most incompetent government department.

It is seven years since this policy began its gestation and 16 months since the announcement that the oligopolist G4S—an organisation presumed by the Government to be able to conduct all kinds of services across the system of government in this country—had been awarded a £25 million contract, notwithstanding the fact that it was then under investigation for fraud and that a National Audit Office report criticising the prolonged delay in implementing a policy of satellite tracking for offenders was soon to be published. A ban on G4S was imposed in 2013 after allegations of overcharging on contracts for the electrical monitoring of offenders, although the ban was lifted in 2014 on the basis that G4S had paid £109 million and Serco, another familiar scion of private enterprise, paid £70 million.

Labour’s shadow Lord Chancellor, Richard Burgon, has referred to G4S as having billed the Government,

“for tagging thousands of ‘phantom offenders’ – including those who were dead or in jail”,

and to,

“serious delays in informing the authorities that over 100 prisoners had been fitted with faulty electronic tags”.

In addition, Capita and two smaller firms became involved, although one withdrew after six months and another after 16 months, following incremental delays in the programme. Can the Minister explain how these failures in contracting occurred, and what steps have been taken to improve the department’s commissioning practice?

G4S purports to be able to provide public services across a broad range, including health, prisons and probation, but in January the Public Accounts Committee published a damning report, pointing out that a scheme due to be completed in 2013 was running five years late at a cost of £60 million to the taxpayer, with an additional irrecoverable loss of £9 million. What is more, the new tags are apparently expected to be available early next year. Can the Minister update us on progress, including both the starting and the completion dates for this project?

In its damning report in January 2018, the Public Accounts Committee described the programme as having been “fundamentally flawed”, and,

“so far … a catastrophic waste of public money which has failed to deliver the intended benefits”,

adding that the MoJ had,

“wasted a huge amount of time and … money to end up with … the same types of tags and supplier it had when the programme started”.

Significantly, the committee’s critique declares that the Ministry of Justice,

“lacked the capacity and capability to manage the difficulties and delays that it created”.

This appears to be confirmed by the fact that it is seven months since the report of the Secondary Legislation Scrutiny Committee asked why the draft order had been laid while piloting of the scheme was in progress—the very issue raised in the noble Lord’s Motion.

Just how long is that process of piloting going to take? Who will evaluate the response? What role will Members of both Houses have in considering the response and triggering the implementation of the order? And what plans are there to review the performance of the contractors? Who will conduct such reviews, and what provision will be made to terminate contracts in the event of failure on the part of the contractors, or if it transpires that, in any event, little or no improvement in reoffending by those fitted with tags has resulted?

I thank both noble Lords for their comments, and I hope to be able to address as many of the points raised as possible. First, clearly I shall have to take on the chin that criticism of what went on previously with this project. I do not have the information about what steps were taken, and why the failures occurred, in front of me, but I will write to the noble Lord and set out properly what happened previously and how we will address these issues in future.

I now turn to the comments of the noble Lord, Lord Thomas of Gresford. When I opened the debate, I tried to explain that this order provides an extension of provisions that already exist. There are other classes of subjects that can already be location monitored on a stand-alone basis. One of the reasons for not hanging around and waiting until the evidence, as he called it, is published, is that the report is not for stand-alone location monitoring on its own. It covers all sorts of different location monitoring, so it is more of an ongoing step, for all sorts of electronic monitoring, much of which is already covered by legislation.

The noble Lord took us back 12 years, to 2004 to 2006, and to what people said then. During the passage of the Crime and Courts Act, there was a significant debate about the civil liberties elements of the tagging, but technology has moved on significantly since then, and we are dealing with a very different beast from what was then being reported on.

I am in favour of innovation and the use of technology. Indeed, I have spent a lot of my life in the field of innovation, and was involved for a period in technological innovation. So I am in favour of all of this. The technology is used for young people in cars, with little black boxes that monitor where our children who have just learnt to drive are going. Our family’s experience of it is that these things are open to abuse from insurance companies—and from technology companies. I worry that things are going on that are far from fair for our young people. My question is: how sure is the Minister that this technology can be trusted and will work in practice? She says that things have moved on, but my experience is that technology always has downsides and weaknesses, and we need to be very secure about it. I am just checking, in this case, what tests have been done.

I thank the noble Lord for his intervention. As I explained in my opening remarks, the technology we are talking about is GPS tracking. Yes, it is used in black boxes. My son has one in his car, so he does not do naughty things on the road—which is superb—and we all have it in our telephones. If the noble Lord is asking whether the technology has been tested, I think we can say that it certainly has. Indeed, it is probably used by most of us on a daily basis as we make our way around in the world using Google Maps. More specifically, the partners in place that will be building up the service providers all have great experience in this area. For example, mapping the data from the tags will be done by Airbus—which I think probably knows a fair amount about where things are, particularly aeroplanes in the sky. Of course we are confident that the technology works, and I believe that the pilot has made us confident that the application of it for this particular group of people is a good thing.

The noble Lord, Lord Thomas, commented on the timing of the publication of the report. I am now in two minds about why I shared that anyway. I did it to put noble Lords’ minds at rest, because the responses from the pilot were, as we have heard, fairly positive. I cannot give the noble Lord a date for publication, but it will be very soon. That is how all this has fitted together.

As for the timing of the SI, noble Lords discussed this in the Moses Room many months ago, and one of the reasons for the timing relates to an issue that was raised slightly later, about engaging with stakeholders. How can we ensure that this system is actually used by the people who need to be able to step up and say, “You can have a tag, because we can trust you to go into the community, provided that you do certain things”? We have found that, the more we can engage with the people within the criminal justice system who will make those orders, the more likely they are to use the tag. We wanted to get the timing of the SI right so that we could engage with stakeholders.

The noble Lord also mentioned charging. I think that I too mentioned that in my opening remarks. It takes one hour a day, and—to be a bit brutal—it is slightly better than being in custody to have to sit down somewhere and charge a tag. There is also the portable battery charger; I talked about that too. So I do not believe this is a huge issue. The design, too, is much better. We have all seen that the size of these things has now come right down to an insignificant size that will go under a sock, which is very good.

As for resourcing, the cost of monitoring has been brought down significantly by technology—and on the flip side, there are benefits. The cost of investigations could be lower for the police as they look for people they want to rule in or out of possible criminality.

I take the point made by the noble Lord, Lord Beecham, about G4S. I will write to him and set out what happened with G4S in the past, but I reassure him that we have run a fully compliant, open and competitive bidding process for all service providers. There is no scope to exclude bidders within this system, even if they are subject to an ongoing investigation. I recognise the noble Lord’s concerns. We are obviously keeping things under a careful, watchful eye, but we are pleased with the service providers we have.

Finally, on reporting, there are no specific plans to publish an individual report on the effectiveness of the new service, but the ministry will monitor take-up and effectiveness as part of the benefits realisation and will also report on the service providers’ performance. I am sure the noble Lord will find that very interesting. It will report on their performance against service level agreements and the number of orders being managed as part of wider regular offender management publications. I think noble Lords will see the numbers, there will be commentary about how well the service is working and there will be the results of the longer-term pilot by MOPAC in due course.

Before the Minister sits down, will she give an indication of when we will get the reports she has just referred to?

I am afraid I cannot. We know that the first tranche of GPS tags will be coming out at the end of 2018. Full rollout is expected by summer 2019. I think that a period will have to elapse from full rollout until we can get some proper numbers, so I think it will be after that, but obviously I cannot set anything in stone.

My Lords, there is one group of people who have not been discussed this evening, and that is the judges, magistrates and prison governors who will be concerned with making these orders. I am not sure that they will be tremendously helped by, or have much confidence in, the replies that we have received. I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 8.31 pm.