My Lords, I am not sure how this has come about—I have been advised not to gloat because it might be our fault rather than that of the noble Lord, Lord Beecham—but the risk amendment is Amendment 23; he has just moved Amendment 22. To save him having to speak to Amendment 22 later, it may help if I say that we understand the need to bring a wide range of providers in. We are helping a number of staff within probation trusts who have already expressed an interest in being part of a mutual. On 20 May, the Government announced a package of measures to support the voluntary sector and public service mutuals, in particular through the Cabinet Office mutual support programme, which is providing intensive one-to-one support to prepare the first cohort of seven fledging probation mutuals for the competition. Although we do not believe that a probation trust should itself be able to compete, we will be bringing forward this solution—of mutuals—and of course we can explore that later.
I turn to Amendment 23, to which the noble Lord has just spoken. The amendment will require the definition of risk of harm to be prescribed by statutory instrument and subject to the affirmative resolution procedure. While I do not agree that there is a need to prescribe the definition of risk of harm by statutory instrument, I welcome the opportunity to explain how risk of harm is assessed and to reassure noble Lords that the assessment of risk is not simply a tick-box exercise.
The Offender Assessment System provides a structure for National Offender Management Service staff to assess an offender’s static and dynamic risk factors and risk of serious harm. It is a nationally recognised and understood tool that is supported by national guidance for probation and prison staff. The OASys combines actuarial factors, such as age at first conviction and gender, and dynamic factors such as substance misuse or anti-social attitudes, as well as clinical judgment. Following a structured assessment process, offenders are allocated to a risk of serious harm category that ranges from high to medium to low. A range of potential future harms are considered, including harm to self, to staff, to known victims and to members of the public. Within the current assessment process, there are already agreed definitions for what constitutes high to low risk of serious harm. “Serious harm” is defined as an event which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, can be expected to be difficult or impossible. The risk of serious harm is the likelihood of this event happening.
It should be recognised that the risk of serious harm that an offender poses is dynamic and should be kept under regular review. There are numerous behavioural changes that could indicate an increase in the level of risk of serious harm. It would be difficult to enshrine that range of behavioural change in law which could apply meaningfully to individual cases. The current assessment process enables a practitioner to use all the available information to assess whether an offender is at risk of causing serious harm and give differential weight to the information as it relates to that individual. Under the rehabilitation programme, the National Probation Service will decide on allocation, in each case using a set of clear rules. They will retain management of every offender who poses a high risk of serious harm
and every young offender who falls under multi-agency public protection arrangements—MAPPA. This includes offenders who are convicted of serious sexual and violent offences. We are consistently updating and improving the validity of the tools that are used to assess an offender’s likelihood of offending and risk of serious harm.
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As part of the TR programme we have commissioned the development of an evidence-based tool that will better predict serious harmful reoffending. The tool will predict the probability that the offender will commit a serious offence within the next 12 or 24 months, thus improving the consistency of practice and ensuring that those who are likely to commit the most serious harmful reoffences are retained within the public sector probation service.
The initial assessment of risk will be carried out by the public sector probation service. The provider will have a contractual obligation to refer those cases to the public sector, where there has been a significant change in circumstances. They will then check with the public sector to ensure whether it will be necessary to put additional measures into practice.
We should be very careful in this campaign not to set hares running about the danger to the public. The quotations that the noble Lord gives are under the present system. We are aware that low-risk offenders can do serious harm, just as high-risk offenders may never offend again. We are dealing with human beings. But I hope the remarks that I have made and the depth to which we have gone in terms of consultation and seeking advice will demonstrate that this is something that is very firmly on the radar. In getting that relationship between the public sector probation service, with its undoubted experience and expertise and effective working with medium and low-risk offenders, we believe we can put proper machinery in place. It is a legitimate issue to raise, but it is not in anybody’s interest to start raising public concerns about public safety when, in fact, it is paramount in our mind in setting out the framework within which we intend to operate. I hope in the light of that the noble Lord will withdraw his amendment.