1A: Because it would duplicate existing arrangements to keep victims and family members informed of developments with an offender’s sentence.
As noble Lords are aware, the Bill amends the release provisions that apply to offenders who do not disclose information relating to cases of murder, manslaughter or taking or making indecent images of children. Throughout the Bill’s passage, there have been important discussions about the victims’ right to receive information as part of the parole process. I appreciate the importance and the sensitivity of these issues for many victims, and I emphasis the Government’s commitment to supporting victims throughout this process.
I particularly thank the noble Baroness, Lady Kennedy, and the signatories to her amendment for their contribution to the Bill. I and my noble and learned friend Lord Keen have had extensive discussions with the noble Baroness and other interested Peers. I hope that these discussions have reassured them of how seriously the Government take these issues and our ongoing commitment to work together to improve the existing system further.
In particular, we have discussed improvements made to the victim contact scheme, which provides victims with information about when the hearing will take place and enables them to attend to read a victim personal statement to tell the Parole Board how the crime continues to affect them. At the conclusion of the hearing, victims are informed of the outcome and of their right to request a summary of the Parole Board’s decision. The information and support offered through the scheme is provided by specially trained victim liaison officers.
The Government want to ensure that all eligible victims are able to benefit from the support and information provided through the victim contact scheme. As part of the review of the Code of Practice for Victims of Crime—known as the victims’ code—the National Probation Service, in partnership with the National Police Chiefs’ Council, is currently testing an opt-out system in a number of police force areas with the intention of rolling the scheme out nationally by mid-2021. To date, test areas have reported positive results, with increased referral rates and higher numbers of victims enrolling in the victim contact scheme, and we will keep the process under review.
The new process will be reflected in the revised victims’ code, due to be published shortly. It will require the joint police and CPS witness care units to automatically refer all eligible victims directly to the National Probation Service to be offered the victim contact scheme, rather than, as now, asking whether victims wish to be referred. That way the benefits of the scheme can be better explained by trained victim liaison staff.
The Minister in the other place stated that the honourable Member for South East Cambridgeshire, as the Minister of State responsible for probation services, will work with the Victims’ Commissioner on the rollout of improvements to the victim contact scheme. I therefore hope that the House will agree with the conclusions reached in the other place so that this important Bill can proceed to Royal Assent and commencement.
My Lords, I thank those noble Lords who supported Amendment 1 in my name on 1 July—the noble Baronesses, Lady Barker and Lady Newlove, and the noble Lord, Lord German. This Bill is about alleviating the hurt that non-disclosure of information causes to families, and it places a duty on the Parole Board to act. In agreeing Amendment 1, this House recognised that victims can experience hurt and anguish because of inefficient and ineffective communications about parole hearings. It cannot be stressed enough how important it is for families to be fully informed and involved in parole hearings about release and, when mistakes are made in the flow of information, how much distress this causes victims and their families.
As the Victims’ Commissioner noted, a sizeable number of victims who qualify for the victim contact scheme decline to opt in. Further down the line, they are shocked to learn that the offender has been released, and they were neither aware nor invited to request licence conditions. That is why this House agreed that the opt-in approach was inadequate and did not work well and that it should be replaced with an opt-out system.
Today I want to put on record my response to the various undertakings given today by the noble Baroness, Lady Scott of Bybrook, and the Government. I note their concerns about duplication and I am very grateful, as I am sure many noble Lords across this House are, for the Minister’s assurances. This move forward, with a nationwide rollout of an opt-out scheme for victims, to assess the victim contact scheme as part of a new victims’ code, which will mean that victims and their families will be contacted and receive information unless they actively decline contact, is very welcome news.
While I welcome the Government’s response, I have two questions. First, the noble Baroness, Lady Scott of Bybrook, mentioned the trials that the Government have carried out in testing the new referral process. Do the Government intend to publish the results of these trials? Secondly, as the new opt-out system is rolled out, will there be a programme for tracing those victims who have declined to opt in so that they too can receive information about an offender’s potential release and support?
In conclusion, I thank the noble Baroness, Lady Scott of Bybrook, for her response today. The opt-out system will ensure that victims and their families are informed first about any release of offenders. This update to the victim contact scheme is long overdue and is a huge win for the campaigners—Marie McCourt and the families of the victims of Vanessa George, and the two Members of Parliament who championed the Bill, the honourable Member for Plymouth, Sutton and Devonport and the honourable Member for St Helens North. As the Bill moves forward to become law, I hope that the families will find some comfort from knowing that there is strength in legislation and better communication as a result of their campaign.
My Lords, I, too, want to thank the noble Baroness the Minister for her introduction of this matter this afternoon. It has been a privilege to take part in the passage of this legislation. This is not an area that I normally have involvement with, but it has been a great privilege to work with people having to work in the certain knowledge that what we do cannot be perfect. We cannot, in this legislation, force people who have committed heinous crimes to give information to the victims. But what I think we have managed to do, particularly during the passage of this Bill through your Lordships’ House, is to move the processes on a stage further in favour of the victims to improve the processes and procedures. I say that knowing that, since the last time we discussed these matters, Marie McCourt has had her request for a judicial review turned down and Russell Causley has been released without revealing to his family the whereabouts of his former wife, Carol Packman.
We will never be able to right those wrongs, but all that we can do—and I think we have done in this Bill—is to make sure that the system treats victims in a more humane way than it did before. I am very pleased that the national opt-out scheme will be rolled out. I echo the questions asked by the noble Baroness, Lady Kennedy of Cradley, and I wonder whether the Minister will be able to tell us how the whole system will be kept under review in terms of its impact on the probation service and on the perpetrators of crime, and the extent to which it will play back into assessments of them during sentencing.
The Bill is an enormous testimony to Marie McCourt, who has for many years conducted, with great dignity, a campaign not simply to deal with her own hurt but to alleviate the suffering of the small but significant number of people for whom this is the most horrible issue with which they have to live. In that vein, I welcome what the Government have said today.
My Lords, I too thank the Minister for what she has said today and for the way the Government have encouraged cross-party support for the various elements of the Bill. The Minister spoke further about the testing opt-out system which will be trialled.
I also pay tribute to the campaigning of Marie McCourt and the other families who have been victims of serious offences. The campaigns, which will be partially successful today, will make a significant difference to the lives of victims’ families for generations to come; these campaigns, like Marie McCourt’s, did so in the knowledge that their own situation would not be materially affected or improved by this Bill. They did it to save others from the torment they have endured. I am very grateful to them.
The first part of this Bill forces the Parole Board to consider the non-disclosure of information during release decisions for people convicted of murder or manslaughter and the failure to give the names of victims of sexual assault or the distribution of indecent images. This Bill puts into law what has been the current operating practice of the Parole Board. We are very clear that the withholding of this information is an ongoing form of control and abuse by the perpetrators, of which the family and friends are victims.
To paraphrase the Minister, this Bill is one step, but a significant one, on the road to properly addressing the systemic challenges faced by victims in our criminal justice system. We in the Opposition look forward to a more comprehensive approach to ensuring victims are at the heart of the processes which convict and punish the guilty and release offenders when they have served their time.
I thank my noble friend Lady Kennedy. She won her amendments in this House at an earlier stage of the Bill, which were then reversed in the Commons. The intent of her amendments was to put victims on a more even footing with offenders. In that sense, she was successful. We heard that the Minister thinks that some of the intentions can be met in other ways; we accept that, although we look forward to a wider context in which victims’ rights will be addressed.
My noble friend Lady Kennedy told me on several occasions that she was very inexperienced in the ways in which the House of Lords worked, but I was never deceived by her. I knew she was a very experienced political operator, and she has played a blinder in this Bill. She has worked across parties and across the Houses, and has been an advocate for the victims’ families. I thank her for the work she has done on this Bill.
Today’s legislation, plus the undertakings we have heard from the Minister, show that sometimes it is best to co-operate with the Government. All those who participated on this Bill, particularly the noble Baroness, Lady Barker, have done so in a spirit of co-operation from which we have all benefited. I am glad this Bill is soon to receive Royal Assent. It is one step along the road, but a significant one. It has shown Parliament working at its best.
My Lords, I reiterate my thanks to the noble Baronesses, Lady Kennedy and Lady Barker, and others who brought this amendment for supporting what the Government are doing. I know that they will continue to make sure it works in future.
The noble Baroness, Lady Kennedy, brought up the trials that some police forces are doing. I do not think their results will be released, but we know that really positive reports are coming out of them, with, as I said before, increased numbers of referrals but also higher numbers of victims enrolling in the scheme, which is good news. If there are any results, I will make sure that the noble Baroness receives a copy of them. She also asked about the tracing of the opt-ins. I have not heard about any tracing; I will go back to the department and ask, but it is not something we have traced. It is quite difficult when somebody says “No” to keep asking, “Why not?” or “Do you want to?”. However, I will make sure she gets that information as well.
I thank the noble Baroness, Lady Barker, very much for bringing up Marie McCourt and the families, as other noble Lords have done. She has worked tirelessly for this Bill, and we thank her. I also put on record my thanks to one or two other noble Lords who raised really important issues under the Bill, including the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope, for their positive engagements on mental capacity. Once again, I also thank the noble Baroness, Lady Kennedy, and the signatories to her amendment for raising these important concerns about the victim contact. Finally, the House should recognise—and I recognise—Marie McCourt, Helen McCourt’s mother, for her tireless campaign.
Motion A agreed to.
Consideration of Lords amendments
After Clause 2
Parole board database
I beg to move, That this House disagrees with Lords amendment 1.
This Bill—Helen’s law, as we have come to know it—amends the release provisions that apply to offenders who do not disclose information relating to cases of murder, manslaughter, or taking or making indecent images of children. As Members are aware, it places existing Parole Board guidance on a statutory footing to ensure that parole board members must consider, when making release assessments, any non-disclosure of information relating to a victim’s remains if they were murdered, or the identity of the victims of child sexual abuse.
I once again pay tribute to the tremendous work done by the hon. Member for St Helens North (Conor McGinn) in campaigning for this Bill. He was inspired by his constituent Marie McCourt, whose daughter, Helen, was tragically murdered. I also pay tribute to the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard), many of whose constituents were abused by Vanessa George. Without their tireless work, this Bill would not be progressing through Parliament. I extend to them, once again, my congratulations and thanks.
The Government agree entirely with the spirit and intent behind Baroness Kennedy’s amendment but have some issues with its practicality. Essentially, what it seeks to achieve is already achieved by other means. The first part of Baroness Kennedy’s amendment requires the Parole Board to take responsibility for contacting the victim, but there is of course already a victim contact service as part of the National Probation Service, which has responsibility for precisely that. We think it would create duplication and possibly confusion if two different bodies had the same responsibility for contacting victims.
Their lordships expressed some concern about the effectiveness of the current operation of the victim contact service. In particular, their amendment calls for communications with victims and their families to be done on an opt-out basis so that the family gets contacted automatically, and the contact desists only if the family or victim says, “No, we don’t want to hear anything further.” A pilot of doing exactly that has been running across many parts of the country, although—in response to an inquiry from the hon. Member for Plymouth, Sutton and Devonport—not currently in Devon and Cornwall.
I am pleased to tell the House that, subsequent to the House of Lords’ consideration of this matter, a decision has been taken to roll out that programme nationally as part of the new victims code, which we expect will come into operation in early 2021. We intend to lay before Parliament a negative statutory instrument before long to give effect to that. That is precisely what the other place called for in its amendment. Subsequent to their lordships’ debate, it has been decided to progress and do that, so that part of the amendment is being done already. Their lordships might take some credit for prompting us, but it was something that we had been trialling previously, and we intended to do that. I hope that assurance that it will be done gives Members on both sides of the House a great deal of reassurance, happiness and contentment.
My hon. Friend will know that when the Justice Committee looked at these issues after a great deal of publicity and some court cases, our inquiry shared many of the concerns of the other House about the effectiveness of the victim contact scheme. Can he assure us that appropriate organisational changes, and additional resources where necessary, have been put in to ensure that the scheme can discharge these important duties adequately?
I thank the Chairman of the Justice Committee for the work that he and his Committee have done in this area, which has been very thorough and useful. I think we do accept the point that he has made, as have the hon. Member for Plymouth, Sutton and Devonport and others, that the victim contact scheme can be improved.
I have had discussions with the Minister of State, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), who has responsibility for prisons and probation. She has asked me to pass on to the House her undertaking to meet and speak to the Victims’ Commissioner about improving the victim contact scheme. We will also be happy, either in the same meeting or a separate one, to Labour Front Benchers, including the hon. Member for Hove (Peter Kyle) and, if he wishes, the right hon. Member for Tottenham (Mr Lammy), as well as the hon. Members for Plymouth, Sutton and Devonport and for St Helens North and their constituents if they wish to join the meeting, to discuss any concerns they may have and any ideas they may have for further improvements to the victim contact scheme. I am happy to put that commitment by the Minister of State on the record this afternoon.
This Bill has progressed thus far with cross-party support. It has been worked on very constructively by those on the Government Front Bench and the Opposition Front Bench, as well as by those on the Back Benches. Indeed, it would not have got here without their work, as I said earlier. I hope we can continue in that spirit of cross-party unity on this topic.
Given that the victim contact scheme exists already and the opt-out changes will be made shortly, and given our commitment to work with the Victims’ Commissioner and others to further improve the victim contact scheme, I hope the House will join me in respectfully rebuffing—perhaps that is the word, or perhaps gently pushing back—the amendments that their lordships have sent in our direction.
May I start by thanking the Minister for his comments and the tone in which he has conducted this debate? It is much appreciated by those of us on the Opposition Benches, I can assure him.
I start by paying tribute to the tireless campaigning of victims’ families, and in particular the campaigning of Marie McCourt and the families of those abused by Vanessa George. They have begged successive Governments to time the release of serious offenders in a way that is more responsive to victim circumstance. Supported by my hon. Friends the Members for St Helens North (Conor McGinn) and for Plymouth, Sutton and Devonport (Luke Pollard), they have changed the law for the better.
Observers of this House from the outside may think it is quite normal for people to bring forward legislation from the Back Benches and get it all the way through both Houses, but it is very unusual. In fact, I think I am right in saying that both the Minister and I have attempted in the past to introduce legislation from the Back Benches. In his case, it was to tackle industrial relations in utility companies and in mine it was to extend the franchise to 16 and 17-year-olds, and both of us met with undignified failure. They have succeeded where we unfortunately failed.
Those families will make a significant difference to the lives of victims’ families for generations to come. They did so knowing that it would not materially impact their own situation. They did it to save others from the torment they have endured, and we are grateful to them.
As the House is aware, the first part of the Bill implements Helen’s law. Motivated by the case of Ian Simms, it forces the Parole Board to consider the non-disclosure of key information during the release decisions of people convicted of murder or manslaughter. The unwillingness of murderers to disclose such details is a source of merciless and unrelenting anguish. That is equally true of the young victims of Vanessa George, who was convicted of sexual assault and making and distributing indecent photographs of children. She was released from prison last year, despite never naming the children she abused. The second part of the Bill guarantees the same protections for victims in such cases.
It is unforgivable that our system has not better reflected the needs of those bereaved by such horrific crimes over previous decades. For far too long, victims and their families have been treated as an afterthought in the criminal justice system. They were described as such by the victims’ commissioner for London, Claire Waxman, in a recent interview. The Bill delivers two new key statutory rights to victims and their families. I hope the Government will continue with this direction of travel apace, because, despite repeated pledges, they have still failed to bring forward the long-promised victims law, which would offer a comprehensive set of rights and protections to the victims who so desperately need them. Such a law is desperately needed now more than ever, given the increasing rate of offences for which no one is ever brought to justice because of the victim and witnesses dropping out due to various different issues. We have pledges aplenty from the Government; we need more action.
There is far more left to do to address the systemic challenges facing victims in the criminal justice system. We on the Opposition Benches will continue to press the Government on this issue and work constructively with them when the opportunity arises, as we have done today. We will campaign unfailingly until comprehensive rights are guaranteed by law for those victims who need them the most. This Bill marks one very positive step forward, and the Opposition proudly support it on its convoluted pathway from the Back Benches to the Front Bench and through both Houses of Parliament. We now look forward to the difference it will make for victims and their families.
Lords amendment 1 was proposed in the other place by Baroness Kennedy of Cradley and seeks to address the asymmetry in offender and victim rights, wherein offenders receive regular communication from the authorities—a luxury that most victims will only ever dream of. This cannot continue, and Baroness Kennedy’s amendment represents an effort to tackle the injustice. However, we are happy to have agreed with the Minister, over the course of recent weeks, commitments regarding the future of the victim contact scheme. As a result, we will not seek to divide the House on the amendment.
I want to thank the Minister and put on the record the open-spirited way in which he has engaged with me and Members from all parties as we have approached today’s debate. First, we accept his argument that the creation of a victim database would replicate the work of the victim contact scheme. Victim liaison officers perform a vital role in keeping victims and their families up to date on the release process. That extends to those affected by the shocking crimes under discussion in respect of the Bill. There is scope to improve the scheme further, and the Government have pledged to review it as part of a broader reform of probation. It is vital that the tragic cases to which the Bill applies are given substantial consideration in any such review.
Secondly, we welcome the Government’s intention to introduce an opt-out system as part of the victim contact scheme. That will help to ensure that families of victims are empowered throughout the criminal justice process, extending support to more of those in need while protecting the right to withdraw from the contact process should that be desired.
Finally, we welcome the commitment to involving the Victims’ Commissioner in any review of the victim contact scheme. In her letter dated 7 August, the commissioner laid out her thoughts on how to make the scheme more responsive to victims’ needs, including by changing it from a transactional service into a package of end-to-end support and considering the benefits of co-location with victims’ services. The Government must work closely with the commissioner to consider the viability of her proposed changes.
I thank the Minister for inviting us on the Opposition Benches to contribute to any future review; it is generous of him and welcomed by us. We look forward to working with him on this issue and finding solutions to the challenges of how we ensure that families can easily update contact details over time. It is important that our political system, and those who work within it, come together when broad agreement can be found. Not only is this how politics can better reflect most people’s experiences in their daily lives, but it is a way that we in this House can demonstrate our respect for the suffering of victims and their families by coming together and putting their needs ahead of any others.
May I join the Minister and shadow Minister in paying tribute to the victims who have worked so hard to have an appalling wrong righted, and to the hon. Members of this House who have campaigned so steadfastly for that to be achieved? I welcome, too, the spirit in which the Minister has approached this issue throughout; I think we will all end up in the same position.
When the Select Committee heard evidence around these matters of disclosure—I am grateful again to those members of the public who assisted us while sometimes having to relive painful experiences, as hon. Members can imagine—we had concerns about the effectiveness of the victims service at that time. I am glad to hear that those changes have been made. I hope that the Minister will ensure that it continues to have the resources needed to provide what I think we all accept needs to be a more holistic support service for victims in such circumstances.
We also have to bear in mind the new and perfectly proper responsibilities placed on the Parole Board, ensuring that it is resourced in terms of both money and suitably qualified personnel. I would submit that the chairs of the panels dealing with such sensitive cases should always be legally qualified. I hope and anticipate that the Minister will be prepared to take those suggestions on board. The Select Committee looks forward to keeping an eye on how the review progresses, and I hope that it will not take too long. I also hope that we will, as our party pledge, move towards a victims law in due course, although we appreciate the work that has been done to strengthen the victims code; that is important.
When the Victims’ Commissioner last gave evidence before the Select Committee, she expressed some ongoing concern at the variability of support for victims in general across various parts of the country. Much of the funding comes from police and crime commissioners, and the level of priority can vary—if I can put it that way—from place to place. It is probably not acceptable to have that degree of postcode lottery. I hope that we can engage constructively with the Government to find ways in which we can even out the imbalances to ensure that, wherever the victim is in the country, they get the same and proper levels of support.
This Bill is an important and valuable step forward. It does credit to the parliamentary process that it has been improved and taken forward in the way in which it has. It is in that spirit that we should say to their lordships that, with respect, we regard the amendment to the Bill as now unnecessary. I am grateful to the Minister and to all concerned for this important piece of work.
I thank the Minister for his remarks, which will go a long way to helping the families involved in the case of Vanessa George. I speak today on behalf of the families of the children who were abused by Vanessa George. Those babies and toddlers—as they were when they were abused—are still children and young adults, so they cannot be named; nor can I place on record the names of the family members who have done so much campaigning and hard work, and who have shared so many painful experiences in order to get this far. They know who they are and Plymouth is grateful to them, and I am grateful to them for their work in this respect.
Our campaign started when the news of Vanessa George’s release was made public. At first, its key objective was to prevent her early release, as someone who still held a power over the families and the victims: the names of the children who were abused. We do not believe that every child at Little Ted’s nursery in Laira was abused by Vanessa George, but we do not know which child was. That means that every single family who sent their most precious gift in the world—their child—to the nursery is living with the uncertainty over whether it is their child who was abused, and whether it is an image of the abuse of their child that is festering in some dark corner of the web somewhere. That is a cancer that eats away at people, and the courage and determination of the families throughout this process has been a real source of strength for me.
When it was announced that Vanessa George was released, the campaign then moved to strengthen the law. I want to pay tribute to the Government. As a member of the Opposition Front-Bench team, that is not something I find myself doing often, but in this respect, party politics has been put to one side. The Minister, his predecessor, who is now the Secretary of State, their Justice team colleagues and the officials went out of their way to listen to the family’s concerns and bring forward a measure that enacts the campaigns of two Labour MPs. That is testament to the importance of the issues and the sense that, despite the contested nature of our politics, there are things that we can all agree on and work together on to make our country better.
The campaign had two parts. One was tightening the law to make refusal to name children who have been abused a material consideration for the Parole Board in determining whether to release a prisoner. That legislative change is needed and I am grateful that it remains in the Bill. The second part relates to the amendment that was passed in the Lords. That was the softer side—communication and how the victims’ families felt involved in the process.
Does the hon. Member agree that it is extremely important that the contact database or the contact scheme that the Parole Board has lists each family member? So often in these instances, the trauma of what has happened leads to families breaking up. It is therefore important for each family member to know what is happening.
The hon. Member is exactly right. That point is an important part of the softer side of communication that needs to be built into the system. The majority of the families found out about the release not via communication from the authorities but through Facebook and our local media. That is an enormous tragedy for those families who were unable to prepare themselves or their children for what was coming.
The children who Vanessa George abused and those we think she may have abused and their classmates are now young adults of secondary school age. They are digital natives. They were born with the internet. They know the issues in their community and they have followed this issue, sometimes with greater awareness than their parents. Schools have done a tremendous job in ensuring that they are supported through the process, but we need to build that into a system to make sure that there is proper communication.
I am therefore pleased that the Minister has said that the pilot schemes that were put in place with the probation service will be rolled out nationally, including in Devon and Cornwall. That is a huge improvement on the current situation. I am also glad that they are “opt out” rather than “opt in”. Opting in when the crime or the trial takes place is an enormously difficult decision. As has been said, only one member of a family normally makes that decision to take the lead on liaison with the authorities. For most people, liaison with the police and the criminal justice system is not something that they go through every day, and it is a difficult decision. The ability to have a system, whereby families can adjust their details over time, when email addresses change and families break up, is important. The enormous stress of this case has led to families breaking up. It is right and proper that both parents—the mum and the dad—have the opportunity to know what is happening place.
I am also pleased that the Minister has set out the involvement of the Victims’ Commissioner. I have met her in relation to this case and I have found her as compassionate and skilled in her current role as she was when she was in this House. I know that her involvement will strengthen the system that flows from the Bill.
The roll-out of the victim contact scheme is important. I am glad that the Minister has made that commitment. I would be pleased to take him up on his offer of being involved with that and to feed in the families’ experiences. I have been sharing not just the communication but the whole process with Ministers. In a meeting with one of the Minister’s Justice colleagues, I spoke about the experience of one family member who gave evidence at the Parole Board hearing. It was a still a requirement to attend in person at that point, in the prison where the offender was held, to read out a statement. I could not understand why, in the 21st century, that could not be done by video link from a local court, sparing the family member the pressure of travelling. That applies particularly in the case of a female offender because we do not have as many female prisons as male prisons and that means travelling long distances, especially from the south-west, to give evidence. Coronavirus has speeded up the giving of video evidence, but I know that the Government were looking at a pilot, which was held in London, and that they are considering rolling it out nationwide. I hope that the importance of doing that can be reinforced.
On the basis of the reassurances that the Minister has provided today—I am grateful to him for doing so—I echo the words of my hon. Friend the Member for Hove (Peter Kyle) in saying that we will not be pressing this amendment. I think that is a good thing because, in my mind, child abuse should not be party political: it should be something where we find common ground and work together. I am grateful to Baroness Kennedy in the other place for tabling the amendment and for pressing it, because in doing so she has listened to the campaign of the victims in Plymouth and has helped to achieve movement, which is very welcome. Vanessa George robbed these children of their innocence. She robbed the families of the trust that they could place in their local nursery, which has now closed. Each of the families I have spoken to has said, “This can’t change what happened, but it can stop it happening to someone else.” That is a really important part of where we are going.
I pay tribute to my hon. Friend the Member for St Helens North (Conor McGinn) for his championing of the first part of this Bill in relation to Helen’s law. It is enormously difficult to make a case consistently for as long as he has done, but he has done so proudly, professionally and with great courtesy. I know he will continue to support Marie and the family. Notwithstanding the personal pain that she feels at the release of Helen’s killer, she was pleased to see that this law will come into force soon and hopes that no other family will have to go through what she has gone through. That is a lasting tribute to her campaigning.
I must admit that I was ill prepared to deal with the scale of child abuse that this case presented me with. We need to equip people in public life better for that. Dealing with one case of child abuse is awful, but I was ill prepared for the scale of challenge in dealing, as in this case, with dozens of babies and toddlers who had been abused and the uncertainty around that. I am very glad that, with the support of Labour Front Benchers and of Ministers and their officials, we are getting to a point where the victims will be able to see a form of justice done in improving the system, with better communication on what is taking place.
My final remark is to Vanessa George herself. She maintains a power over the victims by withholding their names. She will know the names of some of the children she abused and photographed and whose images she shared. Wherever she is in Britain at this point, she could help the families and relieve a part of their suffering and uncertainty by naming some of the children she abused. She must know the names. She must know that naming the kids would enormously help the healing process. I appeal to her to do that, because for as long as she holds on to those names, those families will not have peace. That is a really important of this issue.
I thank the Minister for the concessions and the announcements that he has made today. They go an enormous way towards delivering on the campaign on behalf of the families from Plymouth. This is a good Bill. I hope that it can be passed into law by Christmas so that all the families of the children who were abused in Plymouth will know that there is a strengthened legislation and better communication as a result of their campaign.
I would first like to express my support for this Bill as a whole. We absolutely must do everything we can to return the bodies of victims to their loved ones to ensure that they are afforded a proper burial and an opportunity to say goodbye. The death of any loved one can have a profound impact on family members and friends. From the testimony of the McCourt family, who have been the driving force behind this Bill, and that of many others, it is clear that that is magnified in cases of murder, and further still when an offender refuses to disclose where they have left the body of their victim. It is also right that the measures in this Bill extend to those who have been convicted of abusing children and making indecent images of their victims. That is a heinous crime, and families of potential victims deserve answers.
Turning to the amendment, I doubt that anyone would dispute the need to ensure that victims and their families are kept apprised of any parole applications and, indeed, of every stage of the parole process thereafter. Over the past few years as a caseworker for my predecessor and now as the Member of Parliament, I have supported constituents of mine such as the Weedon family, whose daughter Amanda was subjected to a frenzied attack by a complete stranger when walking home from her job as a nurse at a local hospital. She sustained 37 knife wounds. Even more shockingly, it was reported that the attack happened while the perpetrator was visiting the grave of his first victim. The perpetrator of these horrific crimes was sentenced to life imprisonment in the 1980s but made a parole application earlier this year. The family were subsequently informed of this and were able to make a victim personal statement and challenge the Parole Board’s decision in the necessary timeframe. Unfortunately, in this case, the prisoner was released, but the families were at least given the opportunity to make their views known.
It is crucial that victims and their families are given a voice and treated on a level playing field with the offender. Indeed, Amanda’s father, Horace Weedon, who sadly passed away earlier this year, played an active role in the years following Amanda’s murder in improving the support afforded to victims’ families, even delivering a talk at HMP Gartree to prisoners serving life sentences. I would like to take this opportunity to pay tribute to his work.
I welcome the fact that, as the Minister highlighted, there is already a well-established process in place, delivered through the victim contact scheme, which keeps victims and their families up to date with parole applications. Sadly, however, there are still too many cases in which victims and their families are not provided with that information and find out that an offender has been released only when it is reported in the media. That is wrong. Even if the Government consider that creating a database is not the right solution, we need to look again at the process and how it can be improved, not just in the specific instances covered by the Bill but more widely.
I shall keep my remarks very short, but I want to say a few things in the cross-party spirit of the Bill. My remarks became even shorter after the Minister contacted me this morning and explained exactly the concessions that the Government are making. I am very grateful for that. I also pay tribute to the campaigners and Members of this House who have ensured that this important change in the law will hopefully come into force very soon, making life a lot better and more bearable for victims’ families, who have gone through traumatic experiences already.
The Liberal Democrats welcome the Bill, which will hopefully bring much needed justice for the families of victims. I sincerely hope that this legislation will mean that far fewer families find themselves in the awful position of not knowing what has happened after a loved one becomes a victim of a heinous crime.
The most important issue, which is at the core of the Bill, is improving communication, disclosure and open decision making. The parole function needs to make sure that the views of victims’ families are an essential part of that function. As we just heard, there are too many examples of a victim’s family finding out the result of a parole hearing only through media reports or online. I do not doubt that everyone in the House wants to ensure that our justice system does better to support victims. Parole Board cases are of great significance to victims’ families. They must have the right to know what is happening and to have their say—a meaningful say.
The issue we are debating, which arises from the Lords amendment—much of that has already been discussed—is effective communication with victims’ families. That is currently done through the probation service. The Lords amendment would require the Parole Board to provide the essential and meaningful communication with victims’ families. I understand that the Government are offering not to amend this essential part of the Bill, but to improve the probation service to a point where justice is done for the families of victims.
The Government do, however, agree with part of the Lords amendment and have already been running a pilot for opt-out systems so that families can have regular updates, and they intend to lay a statutory instrument under the negative resolution procedure at the beginning of the new year, in line with the new victims code. All that is very welcome. We have also heard that the Government are committing to more contact between the Prisons Minister and the Victims’ Commissioner. Again, that is very welcome.
The proof of those concessions, however, will be in their effectiveness, and we will need to see how effective the system is once it is up and running. My main request is for a proper review of whether the new arrangements have the required outcome of giving the families of victims of terrible crimes the justice that they deserve, and minimising the trauma that families go through.
With the leave of the House, let me say a word or two in conclusion. I once again thank the hon. Members for St Helens North (Conor McGinn) and for Plymouth, Sutton and Devonport (Luke Pollard) for their campaigning on this topic, and I thank the Opposition Front Bench and the Liberal Democrat Front Bench for the constructive cross-party spirit in which they have approached it.
This is an example of Parliament working at its best on an issue of profound importance to victims whose lives have been destroyed by either murderers or child abusers who seek to further torment their victims, even after the offence and their trial and conviction, by intentionally and maliciously withholding information about the whereabouts of the body or the identities of the children who have been abused. It is wicked and unacceptable, and this House, in passing this legislation, sends a clear message to those people that their behaviour is abhorrent and unacceptable, and we stand united against it.
Lords amendment 1 disagreed to.
Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendment 1;
That Chris Philp, Tom Pursglove, Neil O’Brien, Julie Marson, Bambos Charalambous and Peter Kyle be members of the Committee;
That Chris Philp be the Chair of the Committee;
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Rebecca Harris.)
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.
In order to observe social distancing, the Reasons Committee will meet not as usual in the Reasons Room but in Committee Room 12.
In order to allow Members to safely leave the Chamber and Members who are going to speak on the next item of business to enter, I suspend the sitting for three minutes.
My Lords, I take this opportunity to thank noble Lords for their interest and contributions thus far in the progress of the Bill. Noble Lords on all sides of the House have eloquently demonstrated the effects that these non-disclosure cases have on victims’ families, and have raised a number of important issues in the parliamentary stages prior to today’s Third Reading. I particularly want to thank the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope, for their positive engagement on mental capacity and how it is addressed in these proposals. The points they raised in Committee were of some significance, and I think I am confident in saying that their concerns have now been addressed after helpful engagement with the Parole Board.
Issues have also been raised regarding provisions for victims tracing and contact. In this regard, I am particularly grateful to the noble Baroness, Lady Kennedy, for her contribution to the debate. Her amendment will be taken to the other place, and I look forward to our discussions on this matter when the Bill returns to this House. It is the intention of my noble and learned friend Lord Keen to meet the noble Baroness outside these proceedings to discuss her amendment and its effect on the Bill in more detail.
The importance of the Bill cannot be underestimated. Although narrow in scope, it has the potential to bring considerable comfort and reassurance to families who have endured unimaginable distress. I therefore hope that the Bill progresses quickly through the other place, and I look forward to discussing it further upon its return to this House.
My Lords, I do not normally take part in Bills of this type on this sort of subject, but it has been a great privilege to do so this time. Let me put on record my thanks and that of others to Mrs Marie McCourt, Helen McCourt’s mother, who is responsible in effect for the Bill coming to this place. She has worked tirelessly and with great dignity, not just on her own behalf but on behalf of the small number of families who find themselves in this most awful position. Mrs McCourt was very generous with her time and gave me an understanding of why the Bill is necessary. I pay tribute to the Opposition Front Bench for the collaborative way in which they worked with us, particularly to bring about the amendment which will strengthen the requirement on the criminal justice system actively to keep up-to-date records of victims and families.
The one thing this Bill cannot do is bring about a situation in which every family will have the justice that they seek because it cannot compel people to bring forward information about where victims are buried. However, we have done our very best in this House to take these measures as far as we can and I sincerely hope that as a result of that the number of people who find themselves in the dreadful position where they do not know what has happened to their relatives becomes smaller and smaller.
My Lords, I echo the words of the noble Baroness, Lady Barker. I know that she spoke to Marie McCourt and informed the earlier stages of the debate. We are dealing with families in the most unimaginably tragic situation and Marie McCourt has shown tremendous endurance over decades to get this legislation on the statute book and for recognition of the turmoil that families in that position go through.
My noble friend Lady Kennedy has been very active in this matter, and I would like to put on record my thanks to the noble and learned Lord, Lord Keen, who has been very receptive to the amendment that will be considered in another place and who has had a follow-up meeting to consider other matters that may be taken further. We are grateful to him and for the cross-party approach that this Bill has seen in this House.
As was mentioned by the Minister, other aspects of mental capacity were investigated further, if I can put it like that, at earlier stages of the Bill by the noble and learned Lord, Lord Hope, and others. The Parole Board will have to take a very difficult decision when looking at the reason why this information has been withheld, whether it is because of mental capacity, vindictiveness or as a power play. These are very difficult decisions for the Parole Board to make but it is right that victims’ families are fully informed about the process that the Parole Board is going through and that there are active and statutorily based steps for the Parole Board to make sure that those families are properly informed. I thank the Minister for supporting this legislation.
Bill passed and returned to the Commons with an amendment.
Clause 1: Murder, manslaughter or indecent images: prisoner’s non-disclosure
1: Clause 1, page 1, line 14, after “prisoner” insert “is or was able to but”
Member’s explanatory statement
This amendment seeks to ensure that account is taken of the prisoner’s state of mind in determining whether they can make a disclosure.
My Lords, Amendments 1, 2, 5, 6, 8, 9, 11, 12, 14 and 15, in my name, are in substance the amendments I introduced in Committee. Now as then, I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for supporting them. I am also grateful to the noble Lord, Lord Bradley, who cannot be here today but has great experience in these matters and has written to express his support.
I will speak to the first two amendments, which are repeated, out of necessity, at relevant places in the Bill. The two stand together and make connected points. First, the Parole Board must consider the prisoner’s state of mind and whether for some reason, such as the presence of mental disorder, they cannot form the requisite intention to withhold the information. Secondly, the board must be satisfied that the prisoner has the mental capacity, within the meaning in the Mental Capacity Act 2005, to decide whether to disclose. In moving these amendments, I put on record yet again my support for the principle of this Bill and my admiration for Marie McCourt. I acknowledge the Bill’s importance to grieving families in achieving closure in the most terrible circumstances.
In Committee, the Minister expressed two objections to my amendments. I am very grateful to him for taking time to discuss them in advance of today. His first objection was that my amendments would prevent the Parole Board taking into account any previous occasions on which the offender had had the opportunity to co-operate with the authorities and reveal a victim’s whereabouts, but had refused to do so. He argued that if this offender later became unable to make a disclosure for reasons of deteriorating mental health, for example, my amendment would leave the board unable to consider any prior refusal to co-operate in assessing the risk the prisoner posed to the public in the event of release on licence. The amendments tabled today meet this objection by including the potential for historical consideration.
His second concern is more fundamental and goes to the heart of what I see as the underlying problem with the Bill. Throughout its progress, he has repeated the Government’s view that the board’s discretion to consider all possible reasons for non-disclosure must be unfettered. He contends that my amendments give undue prominence to one factor among the many the board will take into account when making a public protection decision.
But this in effect exactly what the Bill does. It turns consideration of non-disclosure—already a standard practice in parole panels—into a statutory duty. But it fails to create a parallel statutory duty of what must be a fundamental responsibility of the board in coming to its view: to consider whether the prisoner is able, for reasons of mental capacity or disorder, to disclose that information. The Bill therefore comes dangerously close to collapsing together the question of whether there is missing information with that of whether the prisoner should be held responsible for it.
Even if the Bill is not, in law, creating a new criminal offence of non-disclosure, the effect of deliberate non-disclosure is inexorably going to lead to the conclusion that the prisoner poses a risk and, as a result, requires to be kept in prison. Therefore, the Bill is in effect creating a statutory hurdle to release in those cases where deliberate non-disclosure is established. Given this, it should be explicit that that statutory hurdle can exist only where the prisoner can be held responsible for their own actions—that is to say that they are not suffering from a mental disorder or otherwise from impairment of mind or brain that should be seen as alleviating that responsibility.
The noble and learned Lord the Minister has been consistent in arguing that the Parole Board must be allowed to take into account a wide range of factors in making its decisions. But in relation to the Bill, which is so tightly focused on non-disclosure, there are really only three possible scenarios a board would face. The first concerns those cases where disclosure is not possible because the prisoner, for whatever reason, was not party to the disposal of remains and so genuinely does not know where the body is. Of course, there will also be cases where prisoners continue to protest their innocence. This is a problem for the board, but it is not what the Bill is about.
The second scenario concerns the non-disclosure cases where the verdict is not disputed and the facts of the case leave no room for it to be argued that the prisoner does not know where the victim’s body is located. In both those scenarios it is simple. There is either an inability to disclose or there is deliberate non-disclosure, which is culpable. The prisoner who persists in this wilful refusal, amplifying again the distress already visited on the family of the victim, must take the consequences, and in its efforts to address this particular issue, the Bill has my full support.
But it is the third scenario that my amendments address—a scenario on which the Bill is silent. It is the scenario in which the prisoner, for reasons of mental disorder, cannot form the requisite intention to withhold information, or lacks the mental capacity to take the decision to do so. By failing to mention any possibility of the contrary, the Bill assumes that the prisoner has the ability to disclose, thus making any non-disclosure culpable. Prolonged detention for non-disclosure in such cases would be unfair, unjust and a potential infringement of human rights.
By elevating non-disclosure to statutory status, the Bill already departs from the Government’s stated policy of leaving to the Parole Board decisions as to what weight, if any, it gives to the many factors it must consider. The Government have accepted, at the Dispatch Box here and in the other place, that the board should take state of mind and mental capacity into account. But the Bill provides the board with no guidance as to how its statutory duty is to be performed with regard to this. By extension, it fails to guide victims’ families as to what they should expect of the Parole Board in cases of this kind. My amendments would address this discrepancy by elevating in parallel the related imperative to take the ability to disclose into account.
If the Minister is not willing and able to accept these amendments, as I fear he is not, and this guidance is to be dealt with outside the statute, can he at least provide clarity as to what this guidance to the Parole Board is to be, where it is to be found and how its use will be monitored? I would be grateful if he could confirm definitively what training members of the Parole Board receive to support them specifically in making determinations under the Mental Capacity Act 2005. If the board’s responsibility to take mental disorder and mental capacity into account is not to be a statutory duty, it will be vital that its members are fully conversant with the Act and its use within the criminal justice system. I beg to move.
My Lords, I am grateful to the noble Baroness, Lady Bull, for her introduction to this group of amendments, to which I have added my name. I entirely support her careful analysis of the problem they seek to address.
There is no doubt that the Bill has been drafted with the best of intentions, and, as I said when we discussed them in Committee, I completely understand the policy reasons that lie behind it. I have the deepest sympathy for those it seeks to help. We have tended to focus on cases where the failure to disclose has been in murder or manslaughter cases, where the question is where the victim’s remains were disposed of. But cases about the identity of children who are the subject of indecent images are just as distressing to the victims and their families. Our amendments, which are not intended in any way to undermine the Bill’s intentions, extend to both of them. That is because the Bill, as drafted, gives rise to the same problem in both cases. I recall the noble and learned Lord the Minister agreeing with us, in the virtual meeting to which he very kindly invited us, that what matters for the purposes of our discussion is the substance of the issue our amendments raise, not their precise wording. The same cannot be said of the Bill; its precise wording does indeed matter.
It is the wording of the new Sections 28A(1)(c) and 29(1)(c) that create the difficulty. I entirely understand the noble and leaned Lord’s point, which he made in Committee and repeated to us in our meeting, that subsections (2) and (3) of those sections do not limit the matters which the Parole Board must or may take into account, and that he does not want to limit the scope that this leaves to the board. The problem lies in the meaning that is to be given to the words “has information” and “has not disclosed” in subsection (1), which sets the context for the whole exercise. There is a gap here, which the Bill leaves open. Cases of deliberate refusal where the prisoner has the information, is able to disclose it and fails to do so are covered by these words. These are the obvious cases that are so distressing. They can be seen as cases where the prisoner is deliberately prolonging the agony being suffered by the victim’s families and, in the children’s case, by the victims too. Their predicament is horrifying, and it is right that everything should be done to address it. The word “non-disclosure” is absolutely right for use in these cases. It carries with it the notion of intention, as the noble Baroness made very clear. For very good reasons, it was these cases that were in mind when the Bill was being drafted to give statutory force to “Helen’s Law”.
But what about those whom the board believes have or had the information because of the way the crime was committed but, for the reasons given by the noble Baroness, are simply not able to disclose it to the Parole Board because they lack the intention? That is the gap that the Bill leaves open and our amendments seek to fill. It may be said that, as matters stand today, cases of that kind can be dealt with by the Parole Board perfectly well, with all the understanding that they deserve. The Bill assumes that what the board does now must be transformed into a requirement—a statutory duty—and all that this entails. It is designed to change something, not leave things as they are. One can see, by looking at Amendment 17, in the name of the noble Baroness, Lady Kennedy of Cradley, what this may lead to. The context for any judicial review will be set by the terms of the statute. The board needs clarity on this matter.
Are the cases described by the noble Baroness within the scope of these new clauses at all? Our Amendment 1 would make it clear at the outset that they are not, because they are not non-disclosure cases in the proper meaning of that word—they lack the intention. As an alternative, our Amendment 2 would make it clear that, without in any way limiting the scope of the matters that the board can take into account, the prisoner’s mental capacity to disclose the information is indeed one of them. It would provide the assurance that those prisoners need, and the Parole Board needs too, that a decision made on that ground would stand up to scrutiny.
I hope very much that, when he comes to reply, the noble and learned Lord will set out as clearly as he can what guidance has been given to the Parole Board about how it should deal with these cases under the statute, and will answer the various questions the noble Baroness has put to him. I hope, too, that his mind is not entirely closed to the possibility of addressing this difficult issue by an amendment at Third Reading if it seems, on further reflection, that this would be a better way to proceed.
My Lords, first, I wish to associate myself with the expressions of support and sympathy of the noble Baroness, Lady Bull, for those who have campaigned so strongly and so well for the Bill to be brought before the House. It is a very important Bill.
Secondly, I support these amendments because the ability of a prisoner to recall what has happened is, of course, paramount and of considerable importance when the Parole Board is considering its decision. I hope your Lordships will forgive me if I keep my further observations for the second group of amendments, which I will be speaking to in a moment.
My Lords, we have discussed the arguments behind these amendments in Committee and, to some extent, at Second Reading. I am not sure that much has changed since. For my part, while I entirely accept the motives and intentions of those behind the Bill itself, as well as the amendments in this first group, I remain sceptical about the utility of the Bill as an addition to the criminal law. That said, I have every sympathy—who would not?—for the living victims of the abhorrent criminals covered by the Bill, and know why they, and those who support the Bill so enthusiastically, want it enacted. I am sure it will be very soon.
Both the Minister and my noble and learned friend Lord Mackay of Clashfern were not favourably impressed with my suggestion of a discrete criminal offence. From memory, only the noble Lord, Lord Adonis, was prepared to agree with me about the value of the Bill in its current form. My suggestions have now sunk below the waves and can be forgotten. However, I urge the House, despite the experience and wisdom of those supporting these amendments relating to the offender’s state of mind—either through the greater emphasis demanded of the Parole Board in Amendment 1 of the noble Baroness, Lady Bull, or through a Newton hearing under Amendment 3 in the next group, proposed by the noble Lord, Lord Thomas of Gresford—not to curtail the Parole Board’s independence and discretion.
As I indicated in our earlier debates, I would like the Parole Board’s work to be more accessible to the public. Despite the powerful analysis of the noble Baroness, Lady Bull, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, I agree with the Minister’s argument in Committee—which he seems to have repeated in his meeting with the noble Lords—that the Bill in its unamended form enables the Parole Board to fully consider the offender’s state of mind and their reasons for not disclosing the requisite information.
As was pointed out in our earlier debates, when considering the public safety implications of permitting a long-sentenced offender to return to the community, the Parole Board is looking at information and coming to a decision many years after the offence and the trial. A finding made by the trial judge shortly after the verdict about the offender’s failure to disclose the site of the victim’s body or—as the noble and learned Lord, Lord Hope, properly reminded us—the identities of children in criminal images is valuable, and will surely be brought to the Parole Board’s attention, as will be the effect of that finding on the judge’s sentence. However, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out in Committee, we need to be careful not to confuse punishment for the original crime and the public safety implications of the prisoner’s much later release.
It must seem to many noble Lords that, not for the first time, I have got to the church by way of the moon. However, in short, let us leave the Bill as it is. It will be no more effective if amended.
My Lords, I agree with the noble and learned Lord, Lord Garnier: the Bill is best left as it is. Although it is a limited purpose Bill and to be welcomed, there is plainly a need for a proper review of the Parole Board in due course. That is the occasion on which we should look at matters in the round.
In my experience, the Parole Board approaches the exercise of its discretion with the greatest possible care and, in cases where there are issues of mental capacity, takes infinite care to ensure that it has available all the necessary information, including reports from the prisoner. Occasionally, mistakes are made. However, there is always the remedy of judicial review, and it seems to me that it would be much better to leave the Bill as it is, allowing any errors on matters as obvious as mental capacity or findings of the trial judge to be taken into account. The Bill should be left alone; we should not amend it.
Earlier this week, we considered the state into which the law of sentencing has got by a piecemeal approach. It is not something we should do in criminal justice. Although I shall have something to say in detail about Amendment 3, I accept entirely the analysis of the noble Baroness, Lady Bull, and that of the noble and learned Lord, Lord Hope of Craighead. However, my acceptance of their analysis of the proper approach does not persuade me that it is necessary to amend the Bill. The issues can be safely left to the discretion of the Parole Board, and there is a remedy if it fails to do that.
My Lords, I spoke in Committee and, subsequent to that, I had an exchange of correspondence with Marie McCourt. I would not like anything said today, and I do not think that any noble Lord would mean it, to take away from the need to right the hurt that she, and those dear to her, have felt.
I said on the last occasion that the Parole Board itself needed a thorough overhaul and the Minister, if I remember correctly, agreed with me. My concern here, as it is in many places, is that any law brought in to right a specific wrong can often be wrong itself—you need a much more generalist approach.
None the less, I welcome the Bill. My point is that, when you deal with mental capacity, you also have to remember human frailty. The fact of the matter is that people can just forget. There is at least an element of possibility that someone could just forget what they had done. It is also possible that they could just forget who photographs were of. I know that that may not be a popular thing to say but, going back many years to when I was in the Territorial Army, we used to have exercises where we dropped people and they then had to find their way to places. I was always amazed at how people could not recognise things. There is a genuine defence that someone has just forgotten.
Secondly, I hope that the Minister can assure us that we are not passing a law that will go to Strasbourg to be interpreted. When I look at this, I wonder whether it will pretty quickly end up in the European Court of Human Rights, where it will not be us doing the legislating but the judges in Strasbourg. I welcome the Minister’s assurance that he really does think that it is proof against even a reasonable prospect of a challenge in the court.
Finally, I agree with the noble and learned Lord, Lord Hope, that wording matters. It can matter quite strongly in the case of a Bill such as this one.
My Lords, I share the sympathy that has been expressed for the families of the victims who are behind the motivation for the Bill.
I looked carefully at the background to this issue to see what effect—[Inaudible]—stage had on the Bill to see if there is a necessity for the amendments that are proposed today. I examined paragraphs 32 and 33 of the Explanatory Notes, which say, among other things:
“The proposed change is to put Parole Board practice on a statutory footing … the Bill will not result in any change to current Parole Board practice and it is not anticipated that there will be any impact on the prison population”.
I also listened carefully to the Minister, who, in effect, repeated that analysis in relation to today’s proceedings.
I share the view of the noble and learned Lords, Lord Garnier and Lord Thomas of Cwmgiedd, that we should not interfere with sound parole practice if Parole Board practice is—[Inaudible]—the Parole Board would be much more transparent—[Inaudible]—subject to closed hearings, national security and certain views of—[Inaudible]—confidentiality could be heard in public. What have the Government done to obtain the views, on both this Bill and the amendments that were passed earlier, of the current deputy chair of the Parole Board, His Honour Peter Rook QC—a very experienced and admired judge—and his predecessor, the former High Court judge, Sir John Saunders? I have a suspicion that, if consulted, they would say, “Well, first of all, we would prefer Parole Board procedure to be kept flexible and not to be circumscribed in any way by this Bill”, which—[Inaudible]—any changes to Parole Board practice.
Secondly, I would expect them to say that attitudes to cases change over the years, and that the Parole Board must be a living instrument, dealing with applications—[Inaudible]—released from prison, often many years after the event. I think that I once prosecuted a defendant who was sentenced to a whole-life tariff, remains in prison on that tariff and has taken his case to the European Court of Human Rights at least once. He happens to be the person who—[Inaudible]—which was just mischief-making. That is another example of the flexibility that the Parole Board needs in order to take account of the activities and attitudes of people who have committed dreadful offences such as these.
My main point is that the Parole Board should retain its flexibility to deal with all these issues as part of the larger picture in each case. On balance, I feel that the Bill in its original form does that more successfully than the Bill would do with the amendments added.
My Lords, I thank the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope of Craighead, for the clear way in which they introduced the Bill and for signalling their intention not to push this amendment to a vote.
When we discussed this matter at an earlier stage of the proceedings, I explained that I am one of a number of Peers who has taken part every time we have discussed mental capacity legislation since its pre-legislative state in 2004. I remain concerned that mental capacity legislation is not widely understood or implemented in a variety of professions—even in the medical profession, where one might think that it would be. Given the incidence of mental illness in the prison population, one would think that such legislation is widely understood by practitioners. When we carried out the review of the Mental Capacity Act, that turned out not to be so.
I do not doubt that the Parole Board should be as free as possible to exercise judgment. It is not for those of us outside who do not have access to all the facts of a particular case to second-guess it. My questions during earlier stages of the Bill were about the training of professionals in the criminal justice system, particularly the Parole Board, and the reliance on Mental Capacity Act advisers, Mental Health Act advisers and so on. I have not had answers to those questions; therefore, like the noble Baroness, Lady Bull, I remain concerned that there is a gap in the legislation.
Like others who have spoken to Mrs McCourt, I really want this legislation to work and I do not wish to see gaps through which people who have the capacity and have information but are withholding it can slip. The noble Baroness, Lady Bull, made a valid point. I understand that the noble and learned Lord, Lord Keen, will resist putting these words in the Bill, but can he tell us what regulations and guidance will arise as a result of our discussion?
My Lords, I thank the noble Baroness, Lady Bull, very much for moving her amendment. In Committee, I supported the amendments. I also echo the support of the noble Lord, Lord Bradley, who contacted me personally to say that he very much wishes he could have been here to support the noble Baroness’s amendment.
It must be said that a number of extremely eminent lawyers have, in essence, spoken against the amendment moved by the noble Baroness, Lady Bull. My response to those eminent contributions was best articulated by the noble Baroness, Lady Barker. My experience is that many different parts of the criminal justice system do not understand mental capacity legislation properly and that, even if they do, it is often not used to its full extent. That is because such a large proportion of the people we deal with in the criminal justice system as a whole have mental capacity issues.
I support in principle what the noble Baroness, Lady Bull, has said; I understand that she will not press her amendments to a vote. I hope that the Minister will say something more constructive about addressing the perceived gap in the legislation regarding further review by the Parole Board and the practicality of a possible remedy through judicial review. These are all active issues which have been explored in our debate. The Minister should acknowledge that the concerns raised are real and explain to the House why it would not be necessary to meet them in the Bill.
My Lords, I thank the noble Baroness, Lady Bull, and other noble Lords for their contributions to this debate. Perhaps I may reiterate the position of the Government, which is that we consider that the amendments would unnecessarily fetter the discretion of the Parole Board. I do not accept that there is a gap in the legislation, as suggested by the noble and learned Lord, Lord Hope of Craighead.
I shall initially address Amendment 1 and related Amendments 5, 8, 11 and 14, which would ensure that the Bill’s provisions applied only to prisoners who are, or have previously been, “able” to disclose relevant information but have not chosen not to do so.
The Bill affords the Parole Board wide scope subjectively to consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, which is after all an independent judicial body with experience in assessing risk and evidence, sufficient flexibility to take all relevant circumstances into account when making a release assessment.
The board must be satisfied that the offender no longer poses a risk to the public, and this high bar can be met only after it considers all elements of an offender’s case. This already includes an offender’s current and past “ability”, whether mental or physical, to disclose such information. The Parole Board may already consider all possible reasons, in its own view, for any non-disclosure, including historic refusals.
There is some uncertainty as to the meaning of the term “able” in these circumstances, and it would be unclear what criteria the board would use to make their determination. In many cases, there are varying degrees of ability, or varying degrees of information, that the prisoner can disclose, and the interpretations of ability in each case will differ—a point made by a number of noble Lords. The Parole Board in its current practice uses a flexible approach to take into account all elements of a non-disclosure. To use “able” in a determinative and inflexible way would cause unnecessary confusion and potential inconsistencies in its application. That has the potential unfairly to prevent the board when applying the Bill’s provisions from considering a non-disclosure by an offender in many circumstances; for example, the case of an offender who had rendered themselves “unable” to disclose due to illicit drug use in prison. There are clearly other examples of how that difficulty could arise.
By specifically avoiding reference to particulars in the Bill, we are deliberately not limiting the board’s ability to use its expertise in how it approaches such cases. I say in response to a point made by the noble Baroness, Lady Bull, that the Parole Board is possessed of considerable expertise in these areas, including that of mental health.
That leads me on to Amendments 2, 6, 9, 12 and 15, which would explicitly direct the Parole Board to take into account one possible reason for non-disclosure; namely, whether the prisoner has or had the mental capacity to disclose information. The Bill places a broad statutory duty on the Parole Board to take into account non-disclosure on the part of a prisoner and, in doing so, it must consider all the reasons for such non-disclosure. It is therefore for the board itself, as now, to take a subjective view of what those reasons might be, and then it is for the board to decide what bearing this information may have on its subsequent assessment of suitability for release. I remind noble Lords of what is provided for in Clause 1(2)(b), which states:
“When making the public protection decision about the life prisoner, the Parole Board must take into account … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”
That wide remit clearly would embrace all the issues that have been touched on in the debate.
The noble Baroness correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure. However, we do not believe that there is any material benefit in referring to this as a possible reason for non-disclosure in the Bill, as the Parole Board will take all relevant factors into account when assessing a prisoner’s suitability for release. If one factor were to be explicitly stated, it could be asked why other reasons for non-disclosure are not also placed on a statutory footing, such as a geographical change that prevents the location of a victim’s remains being identified or circumstances where mental impairment does not amount to “mental capacity”. As one noble Lord observed, there may be cases where people have simply forgotten or decided to blank matters out of their mind over a period of many years. Clearly, the noble Baroness does not wish to preclude any other relevant factors, but any delineation of what the reasons for non-disclosure may be in order to preserve a flexible approach takes away from the subjective approach that we invite the Parole Board to take. This approach is expressed in Clause 1(3), which states:
“This section does not limit the matters which the Parole Board must or may take into account when making a public protection decision.”
It is for the board to take these matters into account when conducting its assessment.
There are significant practical difficulties in attempting to give examples on the face of the statute, which could lead to unnecessary confusion. That is why a decision as to mental capacity is one of many that would have to be considered. However, the board is bound by public law principles to act reasonably in respect of all decisions it makes. A decision where a relevant mental capacity issue was not taken into account would clearly be amenable to challenge by judicial review. That is why we believe that the more sensible approach is to leave these matters to the considerable expertise and experience of the Parole Board and not to attempt to take one or two factors out of context and place them in the Bill.
I say in response to one or two points raised in debate that the Parole Board already has expertise available to it in dealing with matters of mental capacity. We are not moving away from the current guidelines; we are essentially expressing in statutory form that which can be found there already. The noble Lord, Lord Balfe, asked whether the matter would go to Strasbourg. I simply draw his attention to the certificate given by the Lord Chancellor and Secretary of State for Justice pursuant to Section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with convention rights.
I acknowledge the concern expressed about mental capacity. I reiterate our view that that is well embraced by the broad terms of the Bill. I therefore invite the noble Baroness not to press her amendments.
My Lords, I am grateful to the many noble and noble and learned Lords who have spoken in support of my amendments, and I am particularly grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Barker, for adding their names to them. All noble Lords who spoke supported the aims of this Bill, but several shared concerns that the wording creates difficulties. As the noble and learned Lord, Lord Hope of Craighead, noted, the words “has information” and “has not disclosed” leave a gap in which the third scenario I outlined, where the prisoner is not able to disclose for reasons of mental disorder or mental capacity, is not covered. It does not provide the clarity that the board requires. I echo what I fear is the futile hope of the noble and learned Lord, Lord Hope of Craighead, that the Minister might be persuaded to reflect further following today’s debate and consider a government amendment at Third Reading.
The noble Baroness, Lady Barker, spoke with great experience and authority about the widespread lack of understanding of the Mental Capacity Act and its application within the criminal justice system. For reasons of time today, I did not repeat the observations I made in Committee about the extent to which issues of mental health might be a problem. The paucity of knowledge about the scale of the mental health challenge in our prison population, along with the potential for and the reasons behind mental health decline during incarceration, are there in Hansard. Like the noble Baroness, Lady Barker, I consider that they remain real concerns in the light of this report of poverty of understanding of the Mental Capacity Act.
I am grateful to the Minister for his response and, as I said earlier, for taking the time to discuss between Committee and today’s debate, and I am only sorry that he has felt unable to take on the concerns that we have collectively expressed. However, I appreciate his confirmation that any decision that does not take mental capacity into account could be subject to judicial review. I wonder whether he could clarify his response to my earlier question, along with that put by the noble and learned Lord, Lord Hope, as to where guidance on this could be found, how it would be applied and how it be monitored if it is not to be a statutory duty. Where is the guidance on application or consideration of mental capacity and mental impairment?
Finally, could the noble and learned Lord specifically address the question posed by the noble Baroness, Lady Barker, in Committee and again today, and in writing on 19 May by the noble Lord, Lord Bradley, as to what training in the Mental Capacity Act and its application is mandated for members of the Parole Board. I understand that they possess expertise in mental health matters, but that is not exactly the question that was asked.
Does the Minister wish to reply? No?
Amendment 1 withdrawn.
Amendment 2 not moved.
We come now to the group beginning with Amendment 3. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in debate.
3: Clause 1, page 1, line 20, at end insert—
“(c) where a Newton hearing took place before the trial judge prior to the prisoner’s sentencing, any findings of the judge as to the reasons for the non-disclosure, including the mental capacity of the prisoner.”Member’s explanatory statement
This amendment requires the Parole Board to take into account the findings of a Newton hearing (a short hearing held before a judge without a jury to resolve disputed facts before sentencing) regarding the prisoner’s reasons for non-disclosure, if one was held after a verdict or plea of guilty.
My Lords, the issue that my amendments seek to address is to determine how the withholding of information is to be judged a factor mitigating against the release of a prisoner on parole. The Parole Board makes a public protection order and, as the noble and learned Lord the Minister reminded us a moment ago, it must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the person should be confined.
This Bill requires the Parole Board, in making a public protection decision, to take into account, first, the prisoner’s non-disclosure of the whereabouts of the remains of a victim in murder and manslaughter cases or the identity of victims in the case of indecent images and, secondly, the reasons, in the view of the Parole Board, for the prisoner’s non-disclosure. The Parole Board must take on the difficult task of investigating the reasons for non-disclosure many years after the event, after the tariff period has expired—which, typically in murder cases, is 15 to 20 years. This lapse of time makes it unsatisfactory from the board’s point of view and, I would suggest, from the public’s point of view. But it is also unsatisfactory from the prisoner’s point of view because, although the proceedings affect his liberty, the onus is on him to satisfy the board that he has a proper reason, no doubt on a balance of probabilities.
Secondly, he will probably not be represented. He is entitled to have representation by a solicitor, but legal aid is very limited. He is of course required to set out his case in writing in advance of a hearing on reading the dossier that is sent to him, with or without the help of a solicitor or a friend. Thirdly, if the issue is one of mental capacity, he will of course have great difficulty in representing himself and he has no appeal, save for the discretionary and difficult route of judicial review.
It is highly unsatisfactory also from the point of view of the victim or the victim’s family. First, the prosecution is not represented. Unless the board itself steps into the arena at a hearing, assertions made by the prisoner will not be subject to proper challenge. Secondly, the victim or the victim’s family have a very limited role—nothing save to supply either in writing or orally a victim statement of the impact of the crime on them. Thirdly, the proceedings are, for good policy reasons, held in private—but that means that the issues which are discussed do not receive the light of day.
These difficulties were highlighted by the noble and learned Lord, Lord Garnier, at Second Reading. I am sorry to see that he has now found his way to the moon. His proposed solution, of having a second jury to investigate the reasons for non-disclosure post trial, was impractical, as I think he himself has admitted. He was suggesting that a consecutive sentence should be imposed which would come into effect at some indeterminate future date, presumably after the Parole Board had made a decision to release the prisoner. A consecutive sentence after a mandatory life sentence would not by definition be appropriate. However, although he has resiled from his position, his suggestion that the reasons for non-disclosure of information should be investigated at the time of the trial is obviously very sensible. At that moment, the judge is apprised of the circumstances of the case, as are both the prosecution and the defence.
What is the appropriate mechanism? I have suggested a Newton hearing. My amendments do not make the holding of a Newton hearing mandatory, but they do encourage the holding of such a hearing if there is a dispute about the reasons for non-disclosure at the time of the trial. For example, it might be the mental capacity of the accused or, as I suggested in Committee, where the defence is, “Well, I was part of a group and I do not know what happened to the body; I was not party to its disposal.” They also deal with the situation where a prisoner might seek to argue a subsequent loss of mental capacity: “I cannot remember now why I could not remember at the time of the trial.” That is not a very persuasive argument for meriting release in any event. I suggest that, before sentencing, the judge should inform the defendant, if it be so, that he is sentencing on the basis that critical information is deliberately being withheld, unless the prisoner wishes to contest that assumption. If the prisoner does not, that is the end of the matter. Fifteen years later the prisoner can hardly with success raise reasons for his non-disclosure which he was not prepared to adduce before sentence. However, if he does contest the basis of his sentence that the judge has indicated, a Newton hearing is entirely appropriate.
The purpose, principles and procedure of such a hearing were thoroughly explored by the noble and learned Lord, Lord Judge, then Deputy Chief Justice, in 2003 in the case of Underwood and others. That case has been followed in a recent case in the Divisional Court last July. The noble and learned Lord, Lord Judge, said:
“The … principle is that the sentencing judge must do justice. So far as possible the offender should be sentenced on the basis which accurately reflects the facts of the individual case.”
He said of the 1983 Newton case, which gave rise to this procedure, that it was
“a classic example of an imperative need to establish the facts. To proceed to sentence without doing so, would have been productive of injustice.”
It may be said—the Minister may say it—that the issue could be resolved before a jury by charging an accused in addition to murder or manslaughter with the common law offence of preventing the lawful and decent burial of a body. There is no point in so doing. Any sentence for such a common law offence would be bound to be of a lesser magnitude and would run concurrently from the day it was imposed. It might very well prevent the judge increasing the tariff on the main charge by reason of the aggravating factor of concealing the body, for which he has just imposed a sentence of imprisonment.
I recall the “mummy in the cupboard” murder case in Rhyl in 1960, which drew international attention. The defendant, a boarding house landlady, had stored the body of a tenant of hers in a cupboard. It was 20 years before it was discovered in a mummified condition. The issue at trial at Ruthin assizes was whether the stocking around the deceased’s neck had been used to strangle her. There is no evidence that the material was stretched. The ferociously intense cross-examination of Andrew Rankin QC is etched on my memory as one of the most dramatic court scenes I ever witnessed. Andrew was then a Liverpool junior—perhaps he was the Rumpole of the north—and the expert Crown pathologist he was questioning passed out completely and ended up in a crumpled heap on the floor of the witness box. The defendant was acquitted of murder but convicted, not of the common law offence of preventing a lawful burial—which had not been brought but of which she was clearly guilty—but of collecting the £2 a week that the deceased’s husband had posted to her in the belief that she was alive. That was just over £2,000 over 20 years. She received 15 months’ imprisonment.
As for failing to disclose the identity of children pictured in indecent images, there is no separate offence. No criminal offence is committed by such failure and the accused is not obliged to say anything unless he or she wishes to do so, so that is not an appropriate alternative route. However, in any event, such an argument of adding an additional count cannot be made where there is a plea of guilty: if there is no trial, there is no jury. Where there is serious disagreement between prosecution and defence as to the basis of a plea, a Newton hearing is essential and commonly held.
I have looked at the current sentencing guidelines. There are listed four statutory aggravating factors, such as offences against emergency workers or those committed because of homophobia. I have also looked at the list of 21 other aggravating factors in the sentencing guidelines, none of which includes the concealment of information of the nature with which the Bill deals. The list is said to be non-exhaustive, but it illustrates the importance of the Bill. The campaigns have found a chink, as the noble Baroness, Lady Bull, said, which deserves to be filled.
I therefore commend these amendments as providing a sensible, contemporary—at the time of trial—resolution of issues which would be difficult for the Parole Board to determine 15 or 20 years later. Of course, I pay tribute to the Parole Board’s experience and to the discretion which it frequently exercises. Nevertheless, it is difficult for it to determine something after such a lengthy time.
I propose to test the opinion of the House on these amendments but, whatever the result of the vote, I hope that the Government will reflect upon the issues which they raise and that they will introduce these or similar provisions in the other place, which will provide a sensible solution to the problems we are discussing and ensure a justice for all the parties in which the public will have great confidence. I beg to move.
My Lords, I find difficulty with these amendments, and I will look carefully at the detail to understand exactly what is involved. As a Scottish lawyer, I was brought up in the Scottish system, where Newton decisions are utterly unknown. Since training in the law of Scotland, I have acquired a certain amount of familiarity with the law of England and Wales, and I have come across these Newton hearings, and indeed the judgment of the noble and learned Lord, Lord Judge, in the case which has been cited, and the explanation he gives for having them.
It may be wise just to look a little bit further into the detail which is required or which requires a Newton hearing. In the law of Scotland, the indictment of a serious offence requires the detail of the offence to be set out. If the accused wishes to plead guilty, he has the option to plead guilty to the indictment as served, or to plead guilty with items in the indictment which are matters of detail deleted. The prosecutor then has the option either to accept that plea, which will be of the offence with the details as agreed by the accused, or to proceed to trial. However, there is no room then for difference of opinion at the sentencing hearing about what the detail of the offence was, so there is no need for anything resembling a Newton hearing.
In England and Wales, the situation is somewhat different in that an indictment requires a description of the offence which does not, or may not, involve the same degree of detail. Therefore, the Crown may accept a plea of guilty from the accused when there is in fact quite a difference between them as to the detail of the offence, and that difference may make all the difference in the world to the seriousness of the offence. Therefore, when the question comes up for sentence, the exact amount of detail and what the details were becomes utterly relevant, but there is no way of resolving that, because there is no jury trial. Accordingly, the judge has to have a hearing when he determines what in his or her view actually happened. The result of that is that the accused has come to accept in effect a plea which has the effect not of being what he wanted but of something that the judge decided he should have wanted.
This is the reason for the Newton hearings. As the noble and learned Lord, Lord Judge, said, to make the matter just, you have to know what happened. That is because the plea has not been sufficiently detailed to determine that. That is why these hearings have to be held. I once thought that it might be possible to get to a better solution by making it a requirement of an indictment to have more detail in it, but that has not so far happened. Who knows what may happen yet?
That is the situation of the Newton hearings. I understand the noble Lord, Lord Thomas of Gresford —with his great experience of both English and Welsh law on this subject—to suggest that if there is a dispute between the accused and the Crown about whether the accused has, justifiably or otherwise, refused to disclose what has happened to the body, the matter would be subject to a Newton hearing. I think that, if that happens, a Newton hearing is inevitable. Fortunately, I think that the noble and learned Lord who will follow me explained that that circumstance is usually taken into account at the conclusion of a hearing, including of course the jury trial, if the matter has become an issue between the parties at that stage. On the whole, it seems likely that this kind of question would be resolved without difficulty. It must be pretty much a matter of clear fact at the time of the trial and, therefore, the judge would usually take account of the situation agreed between the parties as to whether the accused has disclosed where the body went. This is on the assumption that the accused accepts that he committed the murder. I believe that the consequence of all that is that the number of Newton hearings with this subject matter will be relatively small.
I have to say that I speak on this matter subject to the observations of those learned in the law of England who will follow me. This is a matter of course only for the Crown Court, and therefore does not involve the magistrates’ court in which the noble Lord, Lord Ponsonby, is so experienced. In my view, accordingly, there are a very limited number of circumstances in which this arises at all but, if it does arise, it is obvious that the decision of the judge in the Newton hearing will take place before he commits sentence. Therefore, Rule 5 of the Parole Board Rules requires that if the observations of the judge at trial before sentence are available, they are to be considered. The rules already take account of the exceptional cases, if any, in which a Newton hearing has taken place in relation to this matter. I therefore cannot see that it is at all right to modify the Bill by such an exceptional circumstance, which in any case illustrates a possible need for improvement in the law of England and Wales.
It is a pleasure and privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, in this debate. It is important to observe at the outset that I consider this amendment the kind of amendment that shows the danger of trying to make piecemeal amendments to a very limited-purpose Bill.
If I may be permitted, I will first say a little about the law of England and Wales in relation to the role of the judge and of the parties in determining the facts for sentencing. The least common form of determining the facts is a Newton hearing. More commonly, the facts—if there is to be a plea of guilty—are determined on the basis of plea. Both procedures are set out in cases to which reference has been made, but they are now codified in division VII B of the Criminal Practice Directions. By far the most common method of determining the facts is the determination made by the trial judge for the purposes of sentencing. Although a jury determines guilt or innocence, save in a most exceptional circumstance, it is for the judge who has heard all the evidence to determine the facts on which he or she will sentence. If the judge follows the correct approach to this, there can be no dispute before the Court of Appeal in relation to the findings made, as set out in the 2018 judgment of Mr Justice Sweeney in the Queen v King.
Thus, what this amendment seeks to do, on the face of it, is to refer to the least common means of determining facts for the purposes of sentence, leaving out a slightly more common means, but not so common in murder or the other cases covered by the Bill where a life sentence will be involved—that is, a basis of plea agreed with the prosecution—and leaving out of account entirely what would normally happen, which is that the trial judge would have made findings. In the case of murder, this is particularly important because, as I mentioned in Committee, if the body has not been found or has been dismembered so that it cannot be found, this is provided as an aggravating factor under Schedule 21 to the Criminal Justice Act 2003 and the judge must make findings about it—and, in my experience, they invariably make findings about it—and it would be essential for the Parole Board to take that into account to avoid any risk of double punishment.
I therefore regret to say that, on its face, the amendment, if it seeks to deal with the narrow issue of what the Parole Board should do, is not a good amendment, because it leaves out the most common form of the determination of facts. However, if the wider purpose, as explained by the noble Lord, Lord Thomas of Gresford, is to encourage the taking place of Newton hearings after a trial, I venture to suggest that this is a most undesirable process. The trial judge will have heard the evidence; it is plain that, if a body has not been discovered, its whereabouts have not been discovered or the identity of the victim is unknown—as happens often in indecent image cases—this is bound to have been debated at the trial, and the trial judge will, as the law stands, have made the necessary findings. It is to those that the Parole Board should have regard.
If, however, it is thought that there should be a different procedure and that we should look at this matter again, I respectfully suggest that this is not the Bill in which to do it, and that this provision does not achieve what is intended. It illustrates that, if there is a problem with the way in which facts are determined—I believe there is no such problem—this is a matter that should be part of a wider investigation and not undertaken in this limited-purpose Bill.
I therefore propose to vote against this amendment on various completely different grounds. First, it has the potential to impair the discretion of the Parole Board by expressing reference to a particular means of determining the basis of sentencing and leaves out the more important. Secondly, it is unnecessary for the way in which the Parole Board approaches cases for the reasons I gave last time. Thirdly, the Parole Board is under a duty to look at what the judge has found. Fourthly, if there is a wider purpose, this is something that should be examined separately. This amendment achieves none of these purposes and I urge the House to reject it, if the House is divided.
My Lords, the intention behind this group of amendments in the name of my noble friend Lord Thomas of Gresford is to provide the Parole Board with an increased level of relevant information on disclosure by including the issues raised by so-called Newton hearings.
As many noble and learned Lords have said, a Newton hearing may be held when a defendant has been found guilty at trial or entered a guilty plea but the issues in dispute that could affect sentencing were not fully resolved in the trial and therefore not resolved by the jury’s verdict. In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner, including calling witnesses to give evidence if required, and the defence will also present its evidence. When the issue is within the exclusive knowledge of the defendant, as is the case in the two situations defined in this Bill, the offender should be prepared to give evidence. When they fail to do so without good reason, the judge may draw such inferences as they think fit.
It is this increased level of information that would become available to the Parole Board when taking into account the issue of disclosure when considering parole. I do not see that increasing the level of information made available in any way fetters the discretion of the Parole Board. It just gives it more information on which it can judge the issue.
In addressing the principle of Newton hearings in Committee, the Minister made two points. He said, first, that invariably the judge would take into account the matter of non-disclosure when sentencing and, secondly, that Newton hearings “are not that common.” Putting these two points together, it is clear that the matter is considered but not guaranteed. Very few Newton hearings probe deeply into the reasons for non-disclosure. I venture that this is particularly so after a guilty plea at trial.
In Committee, the noble and learned Lord, Lord Woolf, said that Newton hearings provide a route to
“achieving the best possible result”—[Official Report, 20/5/20; col. 1158]
when non-disclosure has to be considered, and I agree with his analysis. Judges will have heard the facts as laid out in the trial and will have to make a judgment when non-disclosure is an issue. These amendments seek fundamentally to encourage trial judges to use the Newton procedure when the question of disclosure is under consideration. At this stage the maximum influence of the trial judge can be brought to bear on the disclosure question.
This would provide some comfort to victims. The offender’s refusal to provide the information will be public. The “I can’t remember” or “I can’t deal with the situation” answers will have been examined. Victims will see the questioning and cross-examining of the prisoner, hear the answers given and be able to see any signs of remorse. They will see the judge’s skills in tackling the defensive screen that offenders may build around themselves. This public record will be of immense use to the Parole Board in its consideration of the disclosure issue for many years into the future. It will be able to examine and probe the answers given at the time of sentencing with a much greater armoury of knowledge than the original court case might provide, especially if the Newton hearing were to take place following a guilty plea.
The trial judge will have presided over the original trial, and for the same judge to carry out the Newton trial before sentencing is a real help for victims. They know that the judge will have heard all the arguments and is in the best place to discover reasons for non-disclosure. Most importantly, it would provide reassurance to victims that this matter had been dealt with fully and properly and that the justice system was aware of their concerns.
Newton hearings are a fairly recent legal procedure and, as we have heard, only in England and Wales, but in the matters relating to the purposes of this Bill, such a hearing could have profound effects on the outcome for victims. Justice is not just a point in time for them; it can last a long time, and a lifetime for some. For victims coming to terms with their grief, anguish and hurt, it can last for ever. That is why the justice system has to do everything in its power to fully investigate non-disclosure at the earliest possible stage in the process.
These amendments, in this tightly drawn Bill, do not determine that there shall be a Newton hearing but simply that, if one has taken place, the Parole Board shall take note of its proceedings, particularly if the hearing had determined whether there was remorse and whether the perpetrator had knowledge of the victims that he or she had chosen not to disclose.
However, although the amendments do not place a requirement on the judicial system that there be Newton hearings, their passing would send a powerful message to prosecutors of the significance of such a hearing, particularly for its impact on victims. I commend these amendments to the Minister and look forward to a positive response.
My Lords, this is an interesting group of amendments, and my party will abstain if a vote is called. I listened carefully to the argument from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lords who have spoken in this debate. The noble and learned Lord, Lord Thomas of Cwmgiedd, summarised the situation clearly from my perspective: Newton hearings are, in any event, the least common form of determining facts. The determining of facts is most often done by judges when summing up the case and, if there is a basis of plea, that would be the basis on which the sentence is made. If it is not accepted, there could be room for moving to a Newton hearing.
As the noble and learned Lord, Lord Mackay, said, Newton hearings occur throughout the whole of the English and Welsh system. As noble Lords may know, I sit as a magistrate in London and we occasionally do Newton hearings. They are used as a method of resolving the seriousness of the offence in some cases, but it seems we are talking about a very narrow set of circumstances here. In particular, the judge will have sat through the whole trial in the first place, and it will be for the lawyers on both sides to go through all the aggravating and mitigating factors, including the non-disclosure of a body. Of course, if the judge is not satisfied that that has been gone into sufficiently, they themselves can ask questions of clarification, if I can put it like that, of any witnesses giving evidence. It seems unlikely that this procedure would ever be used, and as such it should not be in the Bill.
A number of noble Lords spoke about calling witnesses again. It could be an extremely traumatic event for some people to have to be called twice to establish the facts of the case. Surely, it would be far better if all the facts—including the reason for the non-disclosure of the body or of the identity of children who have had sexual images made of them—were established in the trial itself, rather than elements of the trial being repeated in a Newton hearing. I will abstain on this amendment for the reasons I have given.
I thank all noble Lords for their contributions to this debate. The Government remain of the view that these amendments would place too much emphasis on findings of mental capacity at a Newton hearing, particularly the findings made for the purposes of sentence.
In sentencing an offender, it is for the court to consider the punitive element of an offender’s sentence and, in doing so, to take into account the failure to disclose information in setting the tariff. By reflecting this in the sentencing remarks, victims can be assured that due consideration has been given to the non-disclosure. Tariffs must be served in their entirety and irrespective of any disclosure of information after a trial, so the tariff cannot be reduced because of subsequent disclosures. This is an entirely sensible approach, as I believe the noble Lord, Lord Thomas of Gresford, acknowledged when we discussed this matter in Committee. The trial judge is more able to determine the appropriate weighting with regard to non-disclosure when setting the tariff.
On the other hand, the Parole Board’s role is in relation to the preventive element of the sentence. The consideration that the Parole Board must make is whether there should be a continuation of custody or a release on licence if the offender’s risk can be safely managed in the community. The Bill places a statutory duty on the board, when making that wider assessment, to consider the non-disclosure of information by an offender and the possible reasons for it. The board will take a subjective view of what those reasons might be, and what bearing this information may have on the subsequent assessment of suitability for release. When it comes to consider these matters, it must of course take account of the judge’s sentencing remarks. Those, in turn, will be informed by such issues as non-disclosure. I am obliged to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his detailed analysis of how the court approaches these matters in practice and why, in the context of the Bill, it would not be appropriate to simply import the notion of the Newton hearing for the purposes of the Parole Board’s determination.
The noble Lord, Lord Thomas of Gresford, has correctly identified that a prisoner’s mental state may be a significant reason for non-disclosure—a point made earlier by the noble Baroness, Lady Bull, when she spoke to her own amendments. But to limit this to the specific context of a Newton hearing, and to place that in the Bill, appears to us to be too narrow an approach. The Parole Board should be free to consider all reasons, including those that may arise as a result of a Newton hearing—unusual though they may be—and we should therefore avoid any specific delineation in the Bill.
As new subsection (3) in Clause 1 makes clear, the breadth of matters which the board may take into account is, essentially, as wide as possible. In addition, the board is bound by public law principles to act reasonably in all decisions, so a decision where a relevant Newton hearing or an issue of mental capacity was not taken into account could be subject to judicial review. I venture that this is not the Bill in which to approach the whole issue of sentencing guidelines or findings of fact for the purposes of those guidelines. That is already accommodated, and it is in these circumstances that I invite the noble Lord to withdraw his amendment.
My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.
The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.
Consequently, in those circumstances there would be bound to be a Newton hearing along the principles outlined by the noble and learned Lord, Lord Judge. I feel that I am facing considerable senior opposition from the noble and learned Lords, Lord Thomas and Lord Mackay, but I am fortified by the considerable support given to these proposals in Committee by the noble and learned Lord, Lord Woolf, as your Lordships will recall.
As for what the Minister has said, I make it clear that I am not limiting the Parole Board to the findings of a Newton hearing that has taken place some 15 years before. The Parole Board is bound to look at a whole amount of evidence, particularly reports from the prison, medical reports or the victim’s statement. There are all sorts of factors and issues that the Parole Board is to take into account. I suggest not that it should be bound by the findings of a Newton hearing but that it is another factor that ought to be taken into account. For that to happen, it is necessary that there is a Newton hearing in the first place where there is an issue about whether there is an acceptable reason—I will not say a proper reason—for a failure to disclose in the circumstances that we have been discussing on the Bill. More thought ought to be given to this and, for that reason, I will press my amendment.
Amendment 4 not moved.
Clause 2: Manslaughter or indecent images: prisoner’s non-disclosure
Amendments 5 to 16 not moved.
17: After Clause 2, insert the following new Clause—
“Parole board database
(1) Within six months of this Act being passed, the Parole Board must create and maintain a database of family members of victims to whom the circumstances referred to in sections 28A(1) and 28B(1) of the Crime (Sentences) Act 1997 apply.(2) At each stage of an offender’s parole application the Parole Board must contact the relevant persons to provide them with information pertaining to the application, including but not limited to—(a) the timings of hearings where the prisoner’s release from prison is being considered;(b) a relevant person’s rights in relation to requesting a judicial review of the Parole Board’s decision;(c) the length of the sentence that will have been served by the prisoner at the time of the hearing;(d) decisions of the Parole Board; and(e) any other rights that a relevant person has relating to the provision of information.(3) The parole board must remove a relevant person from the database if they, or their parent or guardian (if applicable), do not wish their details to be included in the database.(4) Within one year of the database being created, the Secretary of State must undertake a review of the effectiveness of the Parole Board’s actions under this section, with a report to be laid before Parliament.(5) In this section, the relevant persons are—(a) where the prisoner’s sentence has been imposed for murder or manslaughter, the victim’s parents or guardians, children and siblings; or(b) where the prisoner’s sentence has been imposed for an offence relating to indecent images as defined by section 28B of the Crime (Sentences) Act 1997—(i) the victim, or(ii) the suspected victim’s parents or guardians if the victim or suspected victim is under the age of 18.”
My Lords, Amendment 17 is in my name and the names of the noble Baronesses, Lady Barker and Lady Newlove, and the noble Lord, Lord German. I thank them for supporting this amendment. It is a joint effort and builds upon the one tabled in Committee by the noble Baroness, Lady Barker, and the noble Lord, Lord German, which had support across the House and the support of my noble friend Lord Ponsonby. Let me indicate at the start of the debate that if the Minister does not accept this amendment, I will test the opinion of the House.
This amendment adds a new clause, which seeks to put the victims and their families at the heart of the Bill. It is a clause about respect being given to victims and their families by ensuring that there is a process in place, set out clearly on the face of the Bill, where there can be no dispute about people’s rights or the Parole Board’s obligations regarding communications with victims and their families. In explaining why this amendment is necessary, we must consider the reason for this Bill in the first place. To quote from GOV.UK, the Bill
“places a legal duty on the Parole Board to consider the anguish caused by murderers who refuse to disclose the location of a victim’s body when considering release”.
Thanks to the tireless campaigning of mothers such as Marie McCourt, the Government have rightly recognised that not having your child back to give them “a final goodbye”, in Marie’s words, is harrowing and painful and that legislation is needed to get closure for families such as the McCourts and to relieve the anguish that they feel.
This Bill is about alleviating the hurt that non-disclosure of information causes to families and places a duty on the Parole Board to act. This amendment does the same. It seeks to relieve the anguish that victims and their families experience from not knowing information about parole release hearings and places a duty on the Parole Board to act. It cannot be stressed enough how important it is for families to be fully informed and involved in parole hearings about release, and, when mistakes are made in the flow of information communication, how much anguish this causes victims and their families. As I noted at Second Reading, sadly, many parents involved in the Vanessa George case found out about her release on Facebook or via the local newspaper. That is completely unacceptable. I am sure that every effort was made to contact the parents, but the system places the onus on the victims and their families to keep in touch.
This amendment asks for this small group of people to have the right to receive proper, accurate and timely communications and information from the Parole Board. It shifts the responsibility from the victims and their families to the board. At a meeting a few months ago, the current Victims’ Commissioner and the chair of the Parole Board acknowledged that not all victims opted into the victim contact scheme. They noted that this caused distress to those who failed to opt in and who later discovered, through third parties, that the offender had been released. This amendment addresses that concern.
The Minister will say, as I am sure that he did in Committee, that processes already exist for victims and their families to receive information. Yet despite this, as in the case of the victims and families of Vanessa George, some find out about the offender’s release via the media and Facebook. This amendment stops that from happening. It does not stop a prisoner being released, it just sets a duty for the Parole Board to ensure that communications with victims and their families are made, that they are fully informed at each stage of the process and fully aware of their rights. The requirement is to maintain a database, which is not onerous in number, and have it set up within six months of the Bill getting Royal Assent. It allows victims and their families to opt out of receiving information and communications. It is not now the family’s responsibility to opt in. To ensure that this is working as intended, proposed subsection (4) of the new clause requires the Secretary of State to undertake a review of the effectiveness of the Parole Board action and lay a report before Parliament.
Finally, proposed new subsection (5) sets out, so that there is clarity and no dispute, who the relevant persons are and who needs to be communicated with. I hope that the noble and learned Lord recognises the anguish caused to victims by the Parole Board process and by ineffective communication, and will accept this amendment as it seeks to improve communications and the publicity surrounding parole release hearings. I beg to move.
My Lords, this amendment has two principal functions: first, to ensure that victims are contacted about each stage of the parole application; and secondly, to provide victims with information about the Parole Board’s hearing of the case and about their rights in the course of the application.
The principle of opting out of these two functions is an important change from the current opt-in approach. The amendment seeks to place an obligation on the Parole Board to maintain a database of victims’ contact details, but with victims able to choose not to be on the database and therefore not to receive information. Fundamentally, this provides a right to information which they can choose not to receive if they so wish. In Committee, I sensed that the Minister had some sympathy with these issues. He told us he would be happy to discuss further an opt-out scheme for victims and the provision of improved engagement for victims. I would be grateful if he could tell us whether the proposed meeting on this matter has taken place.
Like other noble Lords, I believe that more needs to be done to support victims. In this tightly defined Bill, that is not necessarily possible, but there are some matters which relate to the Parole Board’s functions where we can act. There are considerations which affect the way in which the Parole Board should engage with victims. In Committee, I raised the importance of the system being modernised. Your Lordships’ House has learnt, if nothing else from this Covid-19 pandemic, to make best use of digital technology. Surely victims’ views can be taken by videolink, rather than having them travel in person to the prison where the perpetrator is located.
Victims will always struggle to come to terms with the grief they have suffered, and sentencing and conviction is just the start of the process. The parole process can easily add to a victim’s pain. Everything that can be done must be done to minimise the trauma it can cause, so opting out is the new right that this amendment provides. The amendment also sets out the information to which victims are entitled. The amendment does not seek to limit the information provided to victims, as proposed new subsection (2)(e) makes clear. For that reason, the review of the amendment’s operation in proposed new subsection (4) is important, as it will ensure that the process, the information and the victim’s rights are as effective as they can be in a situation of such anguish.
The opt-out principle built into this amendment is crucial. There are far too many examples of victims finding out the result of the parole process from media reports, as the noble Baroness, Lady Kennedy, said. I am sure noble Lords will understand that the pain caused by reporters calling victims to ask for their comments on the results of the parole process, when they had no knowledge that it was taking place, is immense. By way of example, Members will recall the case of John Worboys, which was debated in your Lordships’ House.
Within the narrow scope of the Bill, which leads to only a relatively small number of cases to be considered, maintaining the database should not place a large administrative burden on the Parole Board. These parole cases are of great significance to victims; victims have a right to know what is happening and have a right to their say. They deserve a consistent and fair structure for exercising these rights. Modern technology makes keeping in contact with victims much easier. Tracing victims if they have changed address, telephone number or email is now much simpler and quicker.
In the letter sent to us from Marie McCourt—the mother of Helen—whose inspired campaigning has led to this Bill, she says that its passage will help many other families who are in the same situation as she is. Others have suffered the anguish Marie has been through, and some have remained silent, so I pay especial gratitude to her for the fortitude and strength she has shown in speaking out and ensuring that this piece of legislation has been brought forward.
We have a duty to ensure that the Bill is as strong and powerful as it can be. This amendment strengthens rightful engagement with victims, provides a voice for them if they want it, and gives that fundamental reassurance that the parole process is as fair as it can be and, at the same time, does not fetter subjective mechanisms for the Parole Board’s operation. I commend it to the House.
My Lords, I was unable to attend Second Reading due to logistical circumstances resulting from Covid-19. I was therefore delighted to watch the speech of my noble friend Lady Finn. I was further delighted to watch Committee and the debate on the amendment from the noble Baroness, Lady Barker. Sadly, it resonated not just with what I am going through, but with many victims whom I saw in my former role as Victims’ Commissioner for England and Wales.
The Bill has been of not only professional interest to me, but personal. I must declare that I know Marie McCourt very well and the organisation she has set up. I have true admiration for Marie for facing the challenges over the years in wanting to know where the body of her late daughter, Helen McCourt, is lying. That must be heartbreaking, and she is fighting against time. That is why I am grateful to the noble Baronesses, Lady Kennedy and Lady Barker, and the noble Lord, Lord German, and support this amendment tabled by them.
Victims must be given correct information right the way through the criminal justice system. After all, they are involved in the process. You cannot split the two. I see for myself the strain on Marie’s body of ensuring she gets justice for Helen, hence what the Bill is about: Helen’s law. I also understand that people from the noble judiciary will have concerns about the rule of law and the human rights and mental state of the offender. I am very dignified in what I have to go through personally, and Marie is exactly the same. I understand that this legislation would not apply to many prisoners, but that is not the point, because we should not further remove the needs of the families of the victims, causing them to suffer more than anybody else in our criminal justice system.
Speaking as somebody who is currently going through the parole system and finding information while in the victim contact scheme, as the noble Baroness, Lady Kennedy, mentioned, and speaking to the Victims’ Commissioner, I say that victims have to be able to opt out of this scheme. Too many victims are given this information at a traumatic stage. We are also seeing a cut to victim liaison officers, who are the relationship between the offender and the victim.
I am not asking to remove the rights of an offender, I am asking that the Bill thinks about the victim on a level playing field. It has taken many years for Marie to get this where it is. As somebody who knows exactly what it feels like, I ask your Lordships to understand that this is a balance for victims. The victim contact scheme has many options—and no disrespect to what my noble and learned friend will say at the Dispatch Box, but it is very piecemeal. You are waiting around for information; you are waiting for that phone call. You just have to wait. You have no control. This amendment gives a duty to the Parole Board, as the Bill will state that it is a legal duty for the Parole Board to ensure that it always considers victims from the beginning to the end.
Many people do not understand what a victim personal statement feels like to write and read out to people, whether by videolink or on a prison estate. I can assure noble Lords that it is heart-rending and emotional and, when you come to the last word and the last full stop, you are asked to leave the room. I have attended many as Victims’ Commissioner and I have seen the discourteous attitude of offenders who are not bothered and their legal representatives who want them not to speak. But taking the emotion out of this, this proposal sets the right footing to go along with the national Victims Strategy that the Government released 18 months ago. We have to balance them for the sake of our criminal justice system; to give victims the confidence to do what it says on the tin.
There are not many such prisoners, but families who are going through this are running out of time once they know the prisoner will be released. While victims are given exclusion zones—another issue that I am personally dealing with at the moment—that does not reduce the anxiety that you suffer on a daily basis. For all you know, the offender coming out of prison knows exactly where the body lies and exactly what community you live in. The body could be right there, and he could disturb you again. That is too little and too late to give confidence for our victims. That is why I support the amendment to get a database for victims so that they feel that they are at the centre of the Parole Board’s system.
Please include this proposal in the Bill for the reasons that victims have challenged for many years—for their heartache to be recognised and to give them some closure, because, at the end of the day, the criminal justice system should be a level playing field for everybody.
My Lords, I follow the noble Baroness, Lady Newlove, with some humility. She speaks from the heart and from bitter experience. I got to know and respect her greatly from the time we spent on committees together. I also pay tribute to Marie McCourt—whose campaign has been so dedicated and now, I hope, effective—and to my noble friends who put together this amendment.
I spoke in Committee about the issue of those who would never disclose where bodies were buried and drew attention to the tragic impact of the behaviour of the Moors murderers on the family of Keith Bennett all those many years ago. But I want this afternoon to refer to a case that is not about a body that was not disclosed by the perpetrator but the simple issue of a failure to disclose when someone is released or there is a change in their circumstances. That was brought to my attention by Frances Lawrence, the widow of Philip Lawrence, who was a head teacher murdered many years ago. Frances was supported by the then Home Secretary—now the noble Lord, Lord Howard—and my predecessor as Home Secretary, Jack Straw. When I became Home Secretary, it was my privilege to introduce the first substantive measure in relation to victims through the Domestic Violence, Crime and Victims Act 2004.
We have come a long way since those days, and mention has already been made of the greater ease that technology now provides for the Parole Board to be able to keep in touch but also to have a double or triple lock on the way in which proceedings sometimes go wrong. Therefore, there can be little excuse for the failure within the system to notify the victims when there is a change in the perpetrator’s circumstances. It is crucial that that should take place, given—as has been spelled out much more eloquently than I can this afternoon—the pain and distress that comes from finding that information out in a phone call from the media, reading it in the local newspaper or hearing it on the radio. If we can do anything to alleviate that, we should do it, and I can see no reason for not accepting the amendment.
There are times when we can see technicalities or difficulties in process or the way in which bureaucracy might be increased. Perhaps we can see administrative or bureaucratic reasons why something would not work. I see none of those in this amendment, and I hope that we will approve it.
My Lords, I strongly support the Bill and I am conscious of the sort of hurt that the basic matter on which this Bill is founded can cause to people for many years. It is also very important that victims are at the centre of the criminal justice system, and the Parole Board is only part of that, albeit an important part.
I think that it is much easier and more definite if victims are properly included in the victim contact scheme. In other words, victims should be notified about anything that affects them. This is certainly one thing that they should be notified about, but I feel that having a system only for this particular matter—for the Parole Board—is taking the victim from the centre of the victim contact system out to a special place. In my view, unless we have a victim contact system that deals with all the possible interests of victims in what is going on, particularly in relation to those who have done them harm, there is a serious risk that the system is not sufficiently efficient.
It is also important that we keep in contact with victims. That involves finding out if there is a change in their circumstances—in their addresses or in any other matter that affects giving them notice. It is therefore important that a comprehensive system is set in place. I entirely agree with almost all that has been said about contact with victims, but I am not sure that it is wise to set up a system which deals with only one aspect of the criminal justice system rather than a system that deals with the whole lot, which the victim contact scheme was supposed to be. If it has deficiencies, as my noble and learned friend said, the thing to do is to put those right.
My Lords, the House will know that I am not a lawyer. As it happens, I spent about 20 years of my life in the communications industry. One lesson that I learned was almost to a word what my noble and learned friend Lord Mackay just said. In the time available, I have not had a chance to look at the contact scheme—what it should do, what it does do and what it might do. While I say a huge thank you to the noble Baroness, Lady Newlove, for the way in which she put the situation, I want to be informed by my noble and learned friend on the Front Bench what exactly the victim contact scheme is supposed to do at the moment. I find it inconceivable that it does not do the majority of the items that are listed under Amendment 17, but maybe it does not. Maybe there are holes in it.
It may well be that, in certain cases, the Parole Board is not doing its job properly, but the fact that we include something in the Bill will not actually alter that situation one way or the other, except for those responsible to be cautioned or whatever.
The real issue is still the moving problem of the whereabouts of the body, or the disclosure in the case of Ms George. I have some sympathy for the new clause, but before I make any decision I would like to know what the Victim Contact Scheme is supposed to do. I do not know what audit has been done of the system, particularly in relation to the cases that we considered earlier. We certainly need a comprehensive system. Of that I am quite certain, but whether this new clause helps us get there, I do not know. I will have to listen to the Minister before I can make any decision.
My Lords, I thank the noble Baronesses, Lady Kennedy of Cradley and Lady Newlove, not just for their contributions today but for the discussions that my noble friend Lord German and I have had with them about this amendment since the previous stage of the Bill and for their valuable assistance in refining the proposals today, which are somewhat different from those that I put before the House in Committee. In particular, I thank them for enabling us to come up with an opt-out, rather than an opt-in system, in which we have set down a clear definition of victims and relevant persons.
I want to deal with the question raised by the noble and learned Lord, Lord Mackay, which was alluded by the noble Lord, Lord Naseby, concerning why we have the proposal in the Bill and do not leave it to the more general workings of the Victim Contact Scheme. In one sense, they are right. We should have a Victim Contact Scheme which works for all victims in every case, but we do not. We should have a special measure in the Bill because these are victims of a particularly horrible situation. It is not just that they have been victims of a crime; they continue to be victims of the failure of a convicted prisoner to make a disclosure about a particular matter. That is of a sufficiently different order from other crimes for the Government to have brought forward this Bill, which applies solely in those circumstances.
As other noble Lords have said—the noble Baroness, Lady Newlove, said it perhaps more clearly than anybody else—parole hearings in these cases carry a weight even greater than those of other crimes, so it is even more important that the administrative processes, which our criminal justice system quite frequently gets wrong, should not revictimise these people. We are not asking for very much, we are just asking that there be a database, that they be on it and that they have an automatic right to information at all times.
I do not want to repeat the points made by the noble Baroness, Lady Newlove, about the position in which victims’ families find themselves, as I think she said it all. However, having talked to Marie McCourt, I think that we are talking about 100 cases at most. For these cases, which the Government have decided are sufficiently special for us to have a separate law, we should have this system as outlined, and if it works well, there is no reason why it should not be applied more widely either under other legislation or in the often-mentioned general review of the Parole Board.
I hope that the Minister will appreciate that we listened to what he said at earlier stages of the Bill and that we have brought forward an amended proposal which is modest but of immense importance to a very small number of people.
My Lords, I support the amendment and I support my noble friend Lady Kennedy of Cradley. She set out very clearly the reasons for the amendment, and the majority of speakers have supported her. I found the speech of the noble Baroness, Lady Newlove, particularly moving. She spoke from the heart, as always, and, sadly, she spoke from bitter experience. It was particularly interesting that she talked about the practicalities of getting information from the Parole Board, even when you are very well known to the board as a victim.
My noble friend’s amendment would put in place an opt-out rather than an opt-in system, and the various elements of that are specified in the amendment. The arguments against the amendment made by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Naseby, was: that is all very well, but why are these victims different from the other victims within the whole of the criminal justice system? The noble Baroness, Lady Barker, made the point very clearly: the reason they are different is that they continue to be victims because of the non-disclosure of the information.
There are roughly only 100 such victims in the country. I hope that any review of the work of the Parole Board will look at making a much wider opt-out system available in the future, but, now, we have the chance to legislate to address the concerns of this very particular group. The Parole Board has a heavy weight of responsibility but this is an opportunity for the House to make a tangible difference to these victims’ lives, and it should seek to do so. I support my noble friend.
My Lords, I thank all noble Lords for their contributions to this debate. I quite understand the concern that has been expressed about the victims of crime and the victims of these particular crimes.
Perhaps, first, I may make a number of rather technical points in relation to the scope of the amendment. Subsection (1) of the proposed new clause does not apply to those receiving a determinate sentence for the offences contained in the Bill. However, I am confident that the amendment was meant to apply to all sentence types, and I will proceed with my remarks on that basis. Additionally, “relevant persons”, as defined in proposed new subsection (5), would include offenders beyond the scope of the Bill—namely, all those convicted of murder or manslaughter—rather than being restricted to the circumstances set out in the Bill. Again, I will proceed with my remarks on the basis that this was intended to be confined to offenders to whom the Bill applies.
I turn to the substance of the amendment. First, it would require the Parole Board—I emphasise: the Parole Board—to create and maintain a database of victims’ family members in cases captured by the Bill. The board would have to remove a family member from the database if they did not wish to be included. Secondly, it would create an obligation on the Parole Board to provide information to certain groups of victims and, indeed, suspected victims and their families.
This amendment effectively replicates some elements of the victim contact scheme for a limited group of people, and places the duty on the Parole Board to administer it rather than the National Probation Service. With respect, the Parole Board is not equipped for such a function. There is already a well-established process delivered through the victim contact scheme to provide victims with information about the date and outcome of parole hearings, and they can request a summary of the Parole Board decision. This process also facilitates victims requesting the imposition of specific licence conditions for the offender’s release, such as exclusion zones, and assists them in submitting a victim personal statement which will be considered by the Parole Board panel. The Government see no justification for replicating the excellent service provided by the victim contact scheme for a particular group of victims’ families in a limited way.
Proposed new subsection (2) of the amendment proposes an unfettered right to
“information pertaining to the application”,
which may include confidential information relating to the offender, such as police intelligence, which may breach the offender’s confidentiality rights and put their safety at risk. The Parole Board must balance the rights of victims with the rights of the offender.
If there is any suggestion that the parole decision is legally or procedurally flawed, victims may ask the Lord Chancellor to consider making a reconsideration application on their behalf, and the Lord Chancellor can ask the Parole Board to look at the decision again. Victims will receive a detailed letter setting out the reasons why the request for reconsideration was successful or unsuccessful. The victim liaison officer will provide information regarding judicial review if requested.
There are significant practical difficulties in operating such a scheme on the opt-out basis suggested by this amendment. The Parole Board would need to ensure that the correct contact details for each victim are recorded; if a victim does not respond to the offer of contact, it would not be appropriate simply to send updates to a last known address, for example. This amendment would duplicate much of the work delivered under the victim contact scheme but could not replace it entirely. That means that victims would have to receive contacts from and share information with both the Parole Board and the victim contact scheme, which would in turn add to their distress at a potentially very difficult time.
We are currently trialling a new process whereby all eligible victims are referred directly to the National Probation Service, to ensure that they are all offered access to the victim contact scheme directly by it, thus ensuring that we reduce the risk of victims opting out before they are clear about the benefits of the scheme. The new process also incorporates a standard referral form that provides the service with the address, telephone number and email address of victims to allow for multiple methods of contact.
We recognise that receiving information about parole hearings is of great importance to many victims, and we endeavour to support them through the existing victim contact scheme. We consider that this support is far better delivered by the National Probation Service than by being placed on the shoulders of the independent Parole Board, which, as I indicated, is not equipped to carry out such a service.
The amendment also contains a requirement to review the database’s use within one year of its creation. However, as some noble Lords observed, cases such as those detailed in this Bill are extremely rare and it is unlikely that a review after one year could result in any significant, reliable findings.
I emphasise that we are concerned with the position of victims. They are provided with information under the victim contact scheme, which is administered by the National Probation Service. The victim liaison officer will provide information to those who wish to receive it. Where the Parole Board considers or reconsiders a case, victims will receive a detailed letter setting out the reasons why, for example, a request for reconsideration was successful or unsuccessful. We are ensuring that the victim’s personal statement comes before the Parole Board when it has a hearing. We plan to enshrine support for victims in a victims’ law, as we have indicated, but before we do this we will revise the victims’ code to give them more clarity on their rights around access to support and greater flexibility over when and how a victim personal statement can be made.
The noble Lord, Lord German, referred to engagement on this matter. I can indicate that my honourable friend Alex Chalk, the Minister with responsibility in this area, has been endeavouring to arrange a meeting with the noble Baronesses, Lady Kennedy and Lady Barker, to discuss this matter. I do not know whether they are aware of that, but I am advised that this is in train, if I may put it in those terms. In these circumstances and, in particular, having regard to the distinctive role of the Parole Board on the one hand and the National Probation Service on the other, with respect to the victim code, I invite the noble Baroness to withdraw this amendment.
My Lords, I thank all noble Lords who have spoken in this debate. I am very grateful for the support of the noble Lords, Lord German, Lord Blunkett and Lord Ponsonby, and the noble Baronesses, Lady Barker and Lady Newlove, and for the pertinent questions and comments made by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Naseby. I thank the noble Lord, Lord German, and the noble Baroness, Lady Barker, for clearly setting out how the move from an opt-in to an opt-out approach is an important change that needs to take place.
The speech by my colleague, the noble Baroness, Lady Newlove, was passionate and well thought-out; I hope it brought home to noble Lords why this amendment is necessary. As a former Victims’ Commissioner, from her personal experience, and from her friendship with Marie McCourt, she passionately set out the anguish created for families and victims by the parole process and the lack of effective communication; that communication has to change. The victim contact scheme is, in her words, piecemeal, and the wait for information very distressing.
My noble friend Lord Blunkett recognised how this amendment would relieve anguish and pain; I thank him for his support. The noble Lord, Lord Naseby, and the noble and learned Lord, Lord Mackay, referred to the victim contact scheme. I thank them for their questions but, as other noble Lords, and the noble Baroness, Lady Newlove, from her personal experience, pointed out, that scheme is well under par. As my noble friend Lord Blunkett said, it is this Bill that is before us at this time. There is no reason why these amendments should not be accepted; the proposed new clause would also put in place a review after 12 months.
I am disappointed that the Minister is not prepared to accept the amendment. The explanation for not supporting victims and putting a duty on the Parole Board is very disappointing. As the noble Baroness, Lady Barker, noted, and as I tried to outline in my opening speech, the Government have recognised that these families need a separate law to relieve their anguish. Let us please now allow them a separate clause to make sure they are communicated with properly. I wish to test the opinion of the House.
The proceedings were conducted in a Virtual Committee via video call.
My Lords, this Virtual Committee will now begin. I remind Members that these proceedings are subject to parliamentary privilege, and that what we say is available to the public both in Hansard and to those listening and watching.
I shall begin by setting out how these proceedings will work. The Virtual Committee will operate as far as possible like a Grand Committee. A participants’ list for today’s proceedings has been published and is in my brief, which Members should have received. The brief also lists Members who have put their names to the amendments, or expressed an interest in speaking, on each group. I will call Members to speak in the order that they are listed. Members’ microphones will be muted by the broadcasters except when I call a Member to speak and whenever a Question is put, so interventions during speeches are not possible and uncalled speakers will not be heard.
During the debate on each group I will invite Members to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time. Debate will take place on the lead amendment in each group only; the groupings are binding and it will not be possible to degroup an amendment for separate debate. Leave should be given to withdraw amendments. Whenever I put the Question, all Members’ microphones will be opened until I give the result. Members should be aware that any sound made at that point may be broadcast. If a Member intends to press an amendment or to say “Not content”, it will greatly assist the Chair if they make this clear when speaking on the group. As in Grand Committee, it takes unanimity to amend the Bill, so if a single voice says “Not content”, an amendment is negatived, and if a single voice says “Content”, a clause stands part.
We now start with the group beginning with Amendment 1. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” if the Question is put made that clear in debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.
Clause 1: Murder, manslaughter or indecent images: prisoner’s non-disclosure
1: Clause 1, page 1, line 11, leave out “the Parole Board believes” and insert “the prisoner has been certified by two registered medical practitioners as not suffering from irreversible memory loss; and
(d) the Parole Board reasonably suspects”Member’s explanatory statement
This amendment and the next in the name of Lord Blencathra would make it mandatory for the Parole Board to reject parole applications where a prisoner refuses to say where and how they disposed of a body, and the prisoner has been medically certified as not having irreversible memory loss.
My Lords, these little amendments are straightforward—at least, in my view. If passed, they would make it mandatory for the Parole Board not to release any prisoners who refused to divulge where and how they have disposed of the bodies of their victims. I have built in an exception for the minority who may have genuine and irreversible memory loss and are therefore unable to state that.
The reason for the amendments s quite simple. We all know that even when there is no criminality but a person is killed and no body is found, or someone is lost at sea, relatives find it very difficult to get closure. But where someone has been murdered, we have all seen the terrible distress of the parents—for example, of the Moors murders victims or of those murdered by the IRA—when the perpetrators will not reveal what they did with the bodies. It is, we are all told, one of the most difficult things for relatives to contend with. Can one imagine the anguish and the sheer injustice of it if a convict refuses to reveal what they have done with the victims, they continue to thumb their nose at the relatives of the victims and the Parole Board, but they can still be considered for early release?
My noble and learned friend and other noble and learned friends may say, “Well, don’t worry, in those circumstances the Parole Board would be highly unlikely to release that convict”, but why should it be at the discretion of the Parole Board based on its “belief” as to a person’s honesty and integrity?
If a convict, in full possession of their faculties and their memory, refuses to divulge what they did with the bodies of their victims, why should the Parole Board be put in the invidious position of having to come to a subjective judgment based on psychologists’ reports. Parliament should say that, in such circumstances, no one will be considered—I stress “considered”—for early release until they say what they have done with the bodies. If a convict refuses to admit that they have done anything wrong in killing someone, would they be considered for release? I believe not. Thus, if they will not talk about the disposal of their victims, they should automatically be excluded from any consideration of early release.
It is not as if the Parole Board has a great track record of coming to the right judgments, as we have seen in the Worboys cabbie rapist case. He should never have been considered for early release and is rightly still behind bars.
Only last week, Mr Justin Russell, the Chief Inspector of Probation, released a report stating that the number of murders by offenders released on probation rose from 70 in 2015 to 114 in 2018, an incredible increase and a fifth of all homicides in England and Wales. Of these, two-thirds had been assessed as “low or medium” risk on release, which meant that there was a lesser level of supervision and checks by probation officers and police.
This is not the time or place for me to set out my views on the naivety of many on the Parole Board, who swallow any old guff that the psychologists put in front of them: that a convict has seen the error of their ways and is now safe to release. Indeed, I do not have to make that observation, since the statistics that I have just cited speak for themselves.
Sociopaths, psychopaths, serial killers and rapists such as Ian Brady, Worboys and Joseph McCann are incredibly devious and calculating. If they can qualify for consideration for early release by keeping quiet about what they did with the bodies, why on earth should they own up? By doing so, they might trigger a further investigation which could lead to a further charge for another murder. Also, there might be such revulsion at how they disposed of the bodies that no Parole Board would ever dare consider them for early release. Therefore, there is an incentive for them to keep quiet and let everyone think that they killed their victims nicely and gave them a Christian burial.
We should use the certainty of no consideration for early release as the only weapon we have to get those people to talk. The Parole Board cannot do that, since the Bill allows them to consider their application and come to a belief judgment. If we remove that possibility, there is a chance of getting them to talk about what they did to the bodies. For the sake of grieving relatives and for the sake of justice, I beg to move.
My Lords, I support the amendments because of the change that took place when the challenge to the right of the Home Secretary went through the judicial system and the safeguard that existed was therefore withdrawn. I do not share the view that the Parole Board is full of naive people. It has an incredibly difficult job and needs all the support and guidance it can get. I have my own disagreements with it, including on the case of David McCauliffe, who has been in prison for 32 years and did not commit murder or rape, although he did commit some totally heinous crimes.
I speak to this amendment because, like other Home Secretaries, I had to deal with Myra Hindley and Ian Brady. When Keith Bennett’s aunt, on behalf of the family, made her appeals to me to see if we could get an identification of where the little boy, Keith, was buried, my heart went out to the family. It was one of those distressing moments that Home Secretaries and now Justice Secretaries have to deal with in cases of murder, particularly where the body has not been identified and there is not therefore the opportunity to grieve properly or to lay the remains to rest. Winnie Johnson, Keith’s mother, died in 2012 without ever knowing where he was. No parent should have to put up with that.
As I have spoken about already, like my predecessors I was able to block the release of the Moors murderers because the power then existed with the Home Secretary. For reasons relating to human rights—it was not to do with the incorporation of the ECHR into the Human Rights Act but with the appeal that went through the judicial system—that power was taken away and, as described, now rests with the Parole Board.
In the circumstances, we are asking the impossible of the Parole Board: to make a judgment on a situation in which somebody has knowingly refused to identify the place in which they put the body of the individual they murdered. For the parents of a child, that is so horrendous as to require a much more rigid approach than we would normally take in giving judges and the Parole Board, quite rightly, the discretion they need to deal with cases. That is why I am in support.
My Lords, my noble friend Lord Blencathra’s Amendment 1 and the amendments in the next group to be moved by the noble Baroness, Lady Bull, and spoken to by the noble and learned Lord, Lord Hope of Craighead, are concerned with the prisoner’s state of mind or mental capacity at the time of his application to the Parole Board for release on licence. The amendments may start from different places but end up in more or less the same place. The difference between them is where the assessment of the prisoner’s state of mind begins.
In short, if one agrees with my noble friend Lord Blencathra, it is essentially for the prisoner to persuade two doctors that he is not pulling the wool over the eyes of the Parole Board about not being able to remember where the victim’s remains are. If I correctly anticipate the argument of the noble and learned Lord, Lord Hope, it is for the Parole Board to be satisfied that the prisoner’s state of mind or mental capacity is of such a quality that he is able to disclose, but has not disclosed, their whereabouts.
With the greatest respect to my noble friend and the noble and learned Lord, I am not entirely sure that there is much of substance that separates them. In reality, they are doing nothing more than accentuating the need for greater certainty at the Parole Board hearing about the true state of mind and knowledge of the prisoner seeking release. It could be said that my noble friend wants a dispassionately independent or objective assessment of the prisoner’s state of mind from two medical professionals to inform and bind the Parole Board panel, fettering its discretion, whereas the noble and learned Lord is prepared to leave it to the Parole Board panel to reach its own conclusion on the matter without expressing a view on how it obtains the information necessary to reach its conclusion, so long as it takes into account the prisoner’s state of mind or mental capacity to make the requisite disclosure.
It will be recalled that my noble and learned friend the Advocate-General said at Second Reading that
“the Parole Board must particularly take account of what, in its view, are the reasons for this non-disclosure. This subjective approach will enable the board to differentiate between circumstances such as when, for example, the non-disclosure is due to a prisoner’s mental illness, and cases when a prisoner makes a deliberate decision not to say where a victim’s remains are located. Subjectivity is fundamental to the proper functioning of the Bill. It is for the Parole Board, as an independent, court-like body, to decide what bearing such information has on the risk that a prisoner may present and whether that risk can be managed safely in the community. The Bill reflects the established practice of the Parole Board but goes a step further and puts a legal duty on the board to take the non-disclosure into account.”—[Official Report, 28/4/20; col. 195.]
The amendment moved by my noble friend Lord Blencathra brings with it an emphasis familiar to those of us who have had the privilege of listening to his speeches on criminal justice policy in your Lordships’ House and previously in the other place, where he served as a Home Office Minister and a knowledgeable Back-Bencher. He was always listened to with great respect and I often agreed with him.
On this occasion, however, I am not persuaded that what he has proposed adds anything to what my noble and learned friend the Advocate-General said at Second Reading. His amendment is, of course, characteristically clear and forthright. It leaves no room for doubt about he wants and intends to happen. I accept that prisoners convicted of murder or manslaughter should expect justice but not sympathy when asking the Parole Board to order their release after 20 or 30 years of a life sentence if they have not disclosed what they have done with their victim’s remains, particularly when they could have disclosed that information at or before conviction or sentence, when they must have known, or were more likely to have known—even with a trial some time after the event—precisely where the victim’s body was to be found.
The Bill as currently drafted does not preclude the Parole Board but commands it to take the prisoner’s non-disclosure into account, and, as my noble and learned friend said at Second Reading, the Parole Board is a “court-like body”. Knowing, as I do, a fair number of judges who have taken part in Parole Board hearings and been members of it, I have no doubt that its hearings will be conducted in a court-like way and that Clause 1(2) and Clause 1(3) in murder and manslaughter cases, and their equivalent provisions in cases of indecent photographs of children, will be resolutely and fairly applied.
All this is fine as far as it goes within the terms of the Bill itself. However, as I said at Second Reading, although Members of Parliament, Members of your Lordships’ House and others outside Parliament and politics have campaigned for the Bill with the best of motives, it is, in my judgment, a Bill that will disappoint. I listened with care to what was said at Second Reading in your Lordships’ House, having read the debates in the other place. I do not wish to be offensive, but mostly I heard and read enthusiastic applause. What Marie McCourt and the public at large need is a law that is clear, that deters and that bites. Such a law can be based only in a specific criminal offence of non-disclosure, tried not by a court-like body, but in public, by a judge, in an actual court, with suitable sentencing powers. Until we get to that point, while appreciating what the supporters of these amendments are getting at, I suggest that we let this Bill, imperfect as it is, pass unamended.
My Lords, there is clearly great public concern underlying this Bill. However, as he did in a very persuasive speech at Second Reading, the noble and learned Lord, Lord Garnier, has just asked whether it will make any difference whatever. The more speeches one hears, the less convinced one becomes that this is in fact going to change anything. What it does is put the discretion that currently exists, and the facts that currently have to be taken account of by the Parole Board, on a statutory footing. However, it has not been made clear at any stage why putting these on a statutory footing will make any difference to the current arrangement, where it is required to take account of these factors anyway.
In his persuasive speech at Second Reading, the noble and learned Lord, Lord Garnier, argued that non-disclosure of a body should itself be an offence which could lengthen a sentence. However, the response from the noble and learned Lord the Advocate-General raised as many questions as it answered. He said that the sentencing judge will
“take account of the non-disclosure when deciding on the length of the tariff”.—[Official Report, 28/4/20; col. 214.]
Therefore, it is a factor at the moment, but it is also a factor in respect of the Parole Board. To a lay observer such as me, that leaves us in the somewhat confusing position of not knowing where the penalty lies. Does it lie at both ends? Is a longer sentence imposed because of non-disclosure, and because it is a factor in respect of the Parole Board, or not? I would be grateful if the Minister could address that further.
Underlying all this, completely understandably, is massive public concern, which focuses particularly on especially gruesome cases. My noble friend Lord Blunkett said that, in the past, decisions on such cases have been made by the Home Secretary, reflecting—to be direct about it—public sentiment, which tended to go with those crimes that got the most media coverage at the time they were committed. Now, this discretion lies with the Parole Board, but the big problem is that the Parole Board is not really accountable to anyone at all. I welcome the Minister’s point about the role of the courts themselves, because the judge is formally required to consider factors when imposing a sentence. As we explore how we give effect to the real intention of the Bill, I wonder whether there might be some role for the courts—a judge—to take the final decision on whether a prisoner should be released in these circumstances.
My Lords, having not been able to take part in Second Reading, I welcome the chance to take part in today’s debate. I appreciate that we are now in Committee and therefore I will keep my comments brief.
I hope that the Bill will not disappoint, for I think it achieves something of immeasurable value. To all who have lost a loved one and who wait, day by day, if not hour by hour, to be reunited with them, it says that their son, daughter, mother or brother has not been, and will not be, forgotten. It gives victims dignity and it reassures their families that they are not alone in their quest to lay their loved one to rest. This might seem small comfort, but, in the circumstances, it is an important message to relay.
The families’ needs are paramount, and I fear that, despite the best of intentions, Amendment 1 could end up causing further distress. Irrespective of the fact that a “no body, no parole” rule does not allow for potential miscarriages of justice, should it be open to legal challenge, families may find that their suffering is in fact made worse over time. Given that they have already suffered in ways we cannot possibly imagine, I know that this is something we would all wish to avoid.
More generally, I hope noble Lords will not mind if I take this opportunity to welcome the inclusion in the Bill of the statutory obligation for the Parole Board to consider the non-disclosure of information about the identity of children featured in the taking and/or making of indecent images. I declare my interests as set out in the register as someone who works with the victims of child sexual abuse as part of the Independent Inquiry into Child Sexual Abuse. I work on the Truth Project, which runs parallel to the inquiry and was set up so that victims could come forward and tell their stories—so that after years, very often decades, of not being listened to, they could finally be heard. While their experiences are, of course, different, the effects of abuse are all too often the same: lack of self-worth, guilt that this was somehow their fault, lives gone unfulfilled and people’s futures fundamentally changed through no fault of their own.
I would argue that, as a society, we are still coming to terms with the reality of child sexual abuse, so I welcome that the Bill acknowledges the very real harm that these indecent images can do. That is a big step forward and another way in which the Bill offers crucial support for victims and their families. I thank noble Lords for allowing me to make these extra comments. I hope that we will pass the Bill unamended.
My Lords, we heard at Second Reading the case of Helen McCourt. I have looked at how many more cases there have been in England since then of murder convictions where there is no body. There have been quite a number, with victims including Sarah Wellgreen, Jenny Nicholl and Danielle Jones. The interesting but predictable correlation is that the victims are all children and women. The last male victim was Mark Tildesley, aged seven—like Keith Bennett, a child murdered by an older man. I refer noble Lords back to terms that I used at Second Reading: power games and the misuse of power. It is no coincidence that it is young children—young boys and girls—and women who are the victims of crimes where there is no body and yet a murder has taken place.
This is more than a moral crusade, more than an ethical issue. It is more than trying to shape public demand—although I am sure that public demand is huge on this. I recall the heckling outside the Old Bailey many years ago, when a man was about to be convicted of murder and the call went out, “Hand him over to the women of Bermondsey.” Then, and now, we could get a significant majority in the country to acclaim that as a concept. That is not the way we do justice—but if we do justice using legislation through the parliamentary system, where there are weaknesses we need to address them. The fact that young children and women are the victims demonstrates the power game continuing behind bars. It is a misuse of power—the understanding that the murderer retains power over the family and friends grieving the lost one. The murder is motivated in these cases by that power. Therefore, the law needs to address how we deal with that. It is a double anguish, a double punishment that the families receive. It would not be a double punishment if this amendment were passed.
Therefore, to echo what others have said about the case that above all others dominated my early years, the Moors murderers, and Winnie Johnson’s public anguish, which we saw over many decades in our media, while there are many more anguished families who are less vocal and choose other ways to grieve, I do not think that we have the system right. I support the amendment in the name of the noble Lord, Lord Blencathra.
My Lords, my noble friend who proposed these amendments has been well known to me as a very clear, well-informed campaigner for many years in a number of different situations. I am also very conscious of the tremendous pain that is felt by a family who have lost a loved one in circumstances where they are unable to come to closure because they do not have the body of their loved one. However, we have to look at this carefully and that is what I suggest we do.
These amendments deal with a situation in which the prosecuting authority did not have access to the victim’s body in a murder or manslaughter case. In former times, it was difficult to secure a conviction in such a case, but prosecutors’ powers and the means of investigation at their disposal has enabled success in such cases to be easier now. Where a prisoner has pled not guilty and persistently proclaimed his innocence, it will not be consistent with his position to give such information. The circumstances in which such information might not be available are many. It might be impossible for him to know what happened to the body, for example if he was not a principal in the case, but an accessory who gave the lethal weapon to the perpetrator at some distance from the scene, or he was not the person who took charge of the body after the crime and had no knowledge of what was done with it. These are just some of the circumstances in which what happened to the body might not have been known to the prisoner and where the Parole Board cannot know or have a reasonable suspicion that he did. Yet, in each of these circumstances, the family’s pain is the same as if he did know. The result is that it is not always possible to find a just retribution for that pain.
The fact that the prisoner would not disclose the fate of the body would be known and would be a consideration at the time of the sentence. Co-operation with the police in their inquiries is a relevant factor in the determination of a sentence. This would be an important element in that aspect of the sentencing decision. The extent of the prisoner’s involvement would be much more freshly known at the time of the Parole Board hearing.
The Parole Board’s function in making its decision is to consider whether it is satisfied that it is no longer necessary for the prosecution of further protection of the public that the prisoner should be confined. In my submission, it would be utterly contrary to that duty to refuse release, as proposed in the amendment, without any discretion to the Parole Board. I therefore object to the amendment and oppose it. To require the board to consider this matter, thus to commit it to the board’s discretion, is a wise and just way to recognise the severe pain inflicted on the family of the victim in the circumstances disclosed. The prisoner will know that this is to be considered and that this situation is unlikely to be a factor in his favour, so he might be encouraged to disclose what he knows.
In my view there are serious difficulties in making this matter a separate legal offence, as was proposed by my noble and learned friend Lord Garnier, for whom, as a lawyer and otherwise, I have the greatest respect. This is a matter that would be difficult to disentangle from the jury’s verdict on the murder—and the last thing we want is two different verdicts on the same case by different juries. However, I do not need to elaborate on that today, because that is not what is proposed. I conclude by emphasising the fact that I do not consider this a just way of dealing with a very painful problem.
My Lords, I shall be brief, because a great deal has been covered already, particularly by the noble Lord, Lord Mann; he spoke on Second Reading, as I did myself, and we explored some of this then. The Committee should be grateful to the noble Lord, Lord Blencathra. As was said on Second Reading, the Parole Board seems far from ideal in the present circumstances, and to have the safeguard of two registered medical practitioners is the least we can do, particularly in a high-risk situation. We are talking about men and women who have carried out terrible crimes. Bearing in mind the risk that they potentially pose to society, the safeguards in the amendment would be very helpful.
My Lords, I welcome the debate, and I am glad that the noble Lord, Lord Blencathra, has tabled the amendment, because it is right that we should subject the Government to scrutiny. In drafting it, the noble Lord has gone some way down the road towards matters that were discussed in another place, such as whether we should have a rule of no disclosure and no release at all. He has not gone quite that far; he is just seeking to stop early release. Members of your Lordships’ House should go back and read the debates in another place on that matter. If anything, the Commons was inclined to go down a more severe road than that suggested by the noble Lord, Lord Blencathra, but in the end it decided not to. We should pay attention to its reasons for that—particularly in the light of the remarks of the noble and learned Lord, Lord Mackay of Clashfern, who, as ever, dispensed wisdom to those of us who are non-lawyers, which I greatly appreciated.
May I ask the noble Lord, Lord Blencathra, what difference his amendment would make in practice? My understanding is that its main thrust would be to require two medical opinions, which the Parole Board would have to follow; it would take away the board’s discretion. Does he have evidence of the Parole Board making decisions, particularly in cases involving such high-profile serious offenders, either without taking account of medical opinion or disregarding it completely? That seems to be what his amendments suggest may happen, and I am not sure whether there is evidence for that.
The Parole Board has the most difficult of tasks. It is always likely to disappoint one person, or one side of an argument, or another. It frequently finds itself having to depend publicly the judgments it has made, so I would be surprised if it was routinely dismissing or not paying attention to medical assessments. Indeed, it would have to have a medical assessment made by a medical practitioner to determine somebody’s mental capacity. I simply wish to know from the noble Lord what deficiency in the proceedings of the Parole Board he seeks to address and on what basis.
My Lords, I am winding up for the Opposition on this short but very interesting debate. I want to open by addressing the point made by my noble friend Lord Blunkett. He concluded in his support for this amendment that we are asking the impossible of the Parole Board. Although I recognise his immense experience, I question whether that basic assumption is true, and I take up the point just made by the noble Baroness, Lady Barker, that we entrust the Parole Board with these extremely difficult decisions. All the members of the board who I have ever met are extremely responsible people. My understanding of this amendment is that it would require two medical opinions, after which the Parole Board would make its decision, and it is right that the Parole Board should have that responsibility.
My main objection to the amendment is that by making it inevitable in some way that people will find it impossible to get out of prison, they could be tempted to knowingly give wrong information and to do so as a form of torture, if you like, because they know that it will cause more distress to the parents involved. We should not give them that power. We should retain the responsibility and the subjective judgment of the Parole Board in making these difficult decisions.
I also listened to the noble and learned Lord, Lord Garnier, and the response to his points by the noble and learned Lord, Lord Mackay. They are both extremely experienced lawyers. I must admit that I was initially attracted to the solution proposed by the noble and learned Lord, Lord Garnier, but I listened with interest to the objections of the noble and learned Lord, Lord Mackay, and his method of solving the conundrum before us.
This amendment is not appropriate for the Bill, and I think we should pass the Bill as amended. While I acknowledge the point made by my noble friend Lord Adonis questioning whether the Bill is necessary, I think it is right that the practice of the Parole Board is put into statute, otherwise there may be other legal mechanisms of challenging the Parole Board’s decisions if it is adopting this practice but is not supported by proper legislation being in place. On that basis I would reject this amendment. We will consider the other amendments in due course, but largely speaking the Bill should pass unamended.
I thank noble Lords and noble and learned Lords for their contributions to the debate in Committee —[Inaudible.]
Could the noble and learned Lord, Lord Keen, please lean a little closer to the microphone?
I believe the host has stopped the video. I will continue, if I may. Amendment 1, as indicated, would require certification by two—[Inaudible] —the application of the release provisions to the prisoner. Of course if the result of the assessment is that the prisoner is found to be suffering from irreversible memory loss, the Bill’s provisions would not apply to that prisoner. The amendment creates a requirement for medical certification in all cases where the board considered the provisions might apply before such provisions—[Inaudible]—as part of the release assessment. That of course contrasts with the Bill’s current approach, which is to allow the Parole Board as an independent—[Inaudible]—prisoner has not disclosed. So the amendment alters the subjective test that requires the board to— [Inaudible]—which they had not disclosed to, I think I quote, “reasonably suspect” that the prisoner has such information. Again, the replacement of “believe” with “reasonably suspect” would lower the threshold—[Inaudible.]
Virtual Proceeding suspended.
My Lords, we will now resume the Committee stage of the Prisoners (Disclosure of Information About Victims) Bill, and I hope that we will hear from the noble and learned Lord, Lord Keen of Elie. Perhaps I may suggest that he starts his remarks from the top.
I thank the Deputy Chairman of Committees and apologise to noble Lords for any inconvenience that has been caused. It is not clear what the problem was. [Inaudible.]
I was turning to look at Amendments 1 and 3, which, despite having separate effects on the Bill’s provisions, when taken together have the cumulative effect of preventing the Parole Board considering the release of any prisoner who has failed to disclose the relevant information, unless they have been certified as suffering from “irreversible memory loss”. [Inaudible.]
Virtual Proceeding suspended.
I thank noble Lords for their patience. I now turn to consider Amendments 1 and 3, tabled by my noble friend Lord Blencathra. Although they have separate effects on the Bill’s provisions, when taken together, the two amendments have the cumulative effect of preventing the Parole Board considering the release of any prisoner who has failed to disclose the relevant information, unless they have been certified as suffering from “irreversible memory loss”.
Amendment 1 creates a requirement for medical certification in all cases in which the board considers that the provisions might apply to a prisoner, before such provisions would apply as part of the release assessment. This contrasts with the Bill’s current approach which is to allow the Parole Board, as an independent expert body, to form its own belief as to whether a prisoner has the necessary information regarding a victim’s remains, which that prisoner has not disclosed.
In addition, the amendment alters the subjective test that requires the board to believe that a prisoner has information regarding a victim’s remains which they have not disclosed to a test that it “reasonably suspects” that the prisoner has such information. That would lower the threshold of the evidential standard required by the board to satisfy itself.
Of course, mental impairment, including irreversible memory loss, may well be a reason for such non-disclosure, and I fully expect the Parole Board to consider these issues after consultation with medical and other experts, as it does now. In these circumstances, I see no need for a prior medical assessment to take place, which may be unnecessary and which would unjustifiably fetter the board’s subsequent handling of such cases.
Furthermore, the reference to reasonableness here is, I suggest, unnecessary. As a public authority, the board is already obliged to act reasonably, and to prescribe this in the Bill may undermine these existing general law principles. I do not consider that to be the appropriate approach in this instance.
Turning briefly to Amendment 3, which would deny release to any prisoner who failed to disclose the information under consideration in this Bill, unless they were suffering from irretrievable memory loss, as set out in the preceding amendment, it raises very real difficulties. Parole Board consideration of the case would cease until the prisoner disclosed the relevant information or the medical evidence changed. Precluding release on such grounds may very well give rise to a challenge under Article 5 of the European Convention on Human Rights, as once a prisoner has served their minimum tariff, and is found no longer to pose a risk to the public, continuing detention would be regarded as arbitrary for the purposes of Article 5. I will come back to elaborate upon that in a moment.
In addition, as was touched upon by my noble and learned friend Lord Mackay of Clashfern, a failure to disclose relevant information may not be solely due to memory loss but, alternatively, may be due to mental impairment or mental ill-health, or could be a consequence of genuine changes, for example in geography, which meant the location of a body could no longer be identified. Furthermore, creating a blanket ban on release may even create an incentive for offenders to lie about the location of a body. In these circumstances, I encourage noble Lords to consider very carefully what the Bill currently enables the Board to do, which is to investigate these issues and to come to a subjective view in this context.
I will now touch upon a number of points raised. The noble Lord, Lord Blunkett, alluded to the question of the Home Secretary’s former power to block release. I just note that the Lord Chancellor and Justice Secretary does have the power now to review a decision of the Parole Board, and has exercised that power.
With regards to the points raised by the noble Lord, Lord Adonis, in the context of the sentences that we are looking at—that is, life sentences and certain extended sentences—there are two elements to the sentence: the punitive element and the preventive element. The punitive element is essentially the tariff which is set by the court at the time of sentencing, or the minimum period within the life sentence that the accused or convicted person is going to have to spend in custody. That will have regard to a number of factors including, for example, the non-disclosure of the whereabouts of a victim.
The preventive element is addressed by the Parole Board, and not by the court. As my noble and learned friend Lord Mackay of Clashfern observed, the test there is whether it is no longer necessary for the protection of the public that the prisoner should be detained. An element for consideration at that point is whether a failure to disclose the whereabouts of a victim or victims would indicate a continuing threat to the public in that context. To have an absolute bar on the prisoner being released, on the grounds of non-disclosure, would not fit with the appropriate test which has to be applied by the Parole Board at the preventive stage. I reiterate that this would take us into territory where the whole process could potentially be challenged under Article 5 of the convention. It would be extremely unwise for us to legislate on such an issue in circumstances where we left that legislation open to future challenge from the court. That is hardly going to bring any comfort to the families of victims and others.
In these circumstances, I do not consider that it would be appropriate to go down the road suggested by my noble friend Lord Blencathra. I would add only that I concur with the observations made by my noble and learned friend Lord Mackay on the matter of a further criminal offence of non-disclosure. As I indicated before, there is a common law offence of not disclosing the whereabouts of a body, but even if one was to be convicted of that, in the context of a life sentence having already been imposed, there would be another concurrent sentence and that could only lead to a degree of confusion. That is putting aside for the moment the very real difficulty that was identified by my noble and learned friend Lord Mackay of two juries coming to quite different conclusions on the evidence in related trials.
In all of these circumstances, I would invite my noble friend to withdraw the amendment.
My Lords, I thank my noble and learned friend for his response and I am grateful to all noble Lords who have contributed. I shall try to comment briefly on all the points raised. I cannot say that I am disappointed with my noble and learned friend’s reply, since I had no expectation that our Ministry of Justice would countenance the radical proposal that some convicts not deserving of leniency should stay locked up.
Consideration for early release is not a fundamental right; it should be earned by a whole range of factors. Some of these may be subjective and judgmental, such as reports on the convict’s behaviour in prison, his attempts at learning a skill or trade, anger management and so on. Others, I believe, should be a simple statutory bar that removes any discretion from the Parole Board. One would be that a convict who admits that he killed a person but refuses to admit that it was wrong should not be considered for release until he is willing to make that admission. The other case, in my opinion, is the one before us today: no one should be considered for release if he has not given details of how and where he disposed of the bodies of his victims, with the exception for the minority who have genuine memory loss.
My noble and learned friend said that if a prisoner lies about the location of the body and it turns out to be false, he forfeits his right to consideration for early release. I am not suggesting that we take the prisoner at his word; we would not be so naive as to say, “Okay, you’ll get early release; you’ve told us where the body is”, and then a few weeks later discover that he has lied about it—of course not. Nor do I accept that a bar on early release would necessarily be in contravention of Article 5 of the treaty. My noble and learned friend said that it could—I think these were his words—“potentially put us in that territory”. That is far from certain.
I am grateful to the noble Lord, Lord Blunkett, who spoke with considerable authority on this matter. If my arguments are not convincing, I hope that the House will in due course listen to him. I was also moved by what the noble Lord, Lord Mann, said. He, too, had experience of the pain of the families of the Moors murder victims, who were deprived of closure because the killers kept that power. He stressed the word “power”, which is a very good term. If a prisoner can still be eligible for parole and not divulge information about the bodies, he retains that power over the relatives, the victims and the Parole Board.
I am grateful to my noble and learned friend Lord Garnier for his kind and typically overgenerous comments and, as usual, his very thoughtful and learned contribution. I hope that the Government will explore his idea of a proper court hearing to decide on disclosure, despite what my noble and learned friends the Advocate-General and Lord Mackay of Clashfern said. I take the point that my two doctors suggestion is another attempt to get some certainty when a prisoner may not be able to recall. I accept that getting certainty may be difficult for a wide variety of reasons, as my noble and learned friend Lord Mackay of Clashfern highlighted. However, I hope that he would agree with me that, where a prisoner considered to have memory recall simply refuses to divulge information, parole should not be considered in any circumstance. That is a quite different matter from a prisoner who is unable to recall, however that is determined.
In all my time in government, especially in the Home Office, I always found it impossible to get any legal changes through if my noble and learned friend Lord Mackay of Clashfern was opposed to them, because he could always find the legal loopholes in our proposals. In all honesty, our final Bills were all the better for his exacting analysis. He makes the point that a prisoner who refuses to disclose will have that taken into account in sentencing. That is true, but here we are considering whether that prisoner should qualify for early release based on their behaviour in prison. No matter how many extra years the sentencing judge may have added, that is a separate matter from consideration of early release, which depends on what someone has done in prison, not before.
I must say to the noble Baroness, Lady Barker, that I do not think that any of us knows about the internal workings of the Parole Board and how it considers evidence about a prisoner. My amendment is not a criticism of the Parole Board or a suspicion about how it operates in this regard; it is to remove the need for it to come to a subjective belief. I take the view that some things, such as a refusal to disclose where bodies are or how victims were killed, should automatically debar consideration of early release for thsose prisoners who do not have memory loss.
I am also grateful for the contributions of my noble friend Lady Sanderson, the noble Lords, Lord Adonis and Lord Ponsonby, and my noble friend Lord Naseby. While I do not accept my noble and learned friend’s arguments, this is not the place to persist with my amendment, so I beg leave to withdraw it.
Amendment 1 withdrawn.
We now start the group beginning with Amendment 2. I remind noble Lords that if they wish to speak after the Minister, they should email the clerk during the debate. It would be helpful if any noble Lord intending to say “Not content” when the question is put could make that clear in the debate. It takes unanimity to amend a Bill in this Committee. The Committee cannot divide.
2: Clause 1, page 1, line 14, after “prisoner” insert “is able to but”
Member’s explanatory statement
This amendment seeks to ensure that account is taken of the prisoner’s state of mind in determining whether they can make a disclosure.
My Lords, it has long been recognised that the withholding of information about the location of victims’ remains can have a devastating impact on the lives and mental health of their families. This Bill enshrines in law what is already the practice in parole boards, which is fully to consider the failure by a prisoner to disclose this information or, indeed, to disclose the identity of child victims of indecent imagery. By removing any discretion to disregard non-disclosure, the Bill will play an important role in helping families come to terms with what for most of us is unimaginable grief. It is for these reasons that I supported the Bill at Second Reading. In doing so again today, I repeat my tributes to Marie McCourt and to those people who have campaigned tirelessly over several decades to see legislation of this sort brought before the House.
Amendments 2 and 4 in Clause 1 and Amendments 7, 8, 10, 11, 13, 14, 16 and 17 in Clause 2 make two connected points. The first is that parole boards must take account of the prisoner’s state of mind when determining whether they can in fact make a disclosure, and the second is that the prisoner’s mental capacity within the meaning of the Mental Capacity Act 2005 to make the disclosure, is taken into account. Out of necessity, the amendments are repeated at relevant places in the Bill, so I am essentially speaking to two amendments, and these two amendments stand together.
My amendments address the concern I raised at Second Reading that, as drafted, the Bill fails to provide adequate protection for prisoners with mental health issues, and therefore seeks to balance the imperative for justice with the appropriate regard for human rights. Since that occasion, I have discussed these concerns with colleagues working in mental health and with others working in mental health charities, including the charity Rethink. I am grateful to them and to the noble and learned Lord, Lord Hope of Craighead, for their expert advice, and it is with their support that I have tabled these brief amendments.
In response to my questions at Second Reading, the noble and learned Lord, Lord Keen of Elie, said:
“We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness.”—[Official Report, 28/4/20; col 214.]
Speaking in the other place, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, further clarified the Government’s acceptance by saying:
“This subjective approach is fundamental to the proper functioning of the Bill.”—[Official Report, Commons, 11/2/20; col. 748.]
In other words, the Government accept that the approach has to take into account the circumstances of the particular prisoner. This acceptance is important because the consequences of deliberate non-disclosure will, in most cases, give rise to a longer period of imprisonment. The Government rightly accept that these consequences should not flow on a strict liability basis, but only where in effect the non-disclosure is culpable and where there is, as conventional principles dictate, the combination of a relevant act carried out with the requisite degree of either intentionality or recklessness.
This approach has to be correct; any other approach would come dangerously close to suggesting that the mere fact that there is missing information means that the prisoner should be held responsible for withholding it. While the Government’s acceptance of this key point is welcome, the Bill does not at present specifically direct the Parole Board’s attention to the consideration of whether, first, the prisoner has the mental capacity to decide whether or not to disclose the information, and/or, secondly, whether for some reason—for instance, because of the presence of mental disorder—they cannot form the requisite intention to withhold the information.
It is difficult to know how extensive a problem this might present, as it has always been challenging accurately to estimate the number of prisoners with mental health problems in England and Wales. The 2017 report from the Public Accounts Select Committee showed that people in prison are more likely to suffer mental health problems than those in the community, and successive reports from the noble Lord, Lord Bradley, the National Audit Office and others have all highlighted that it is unknown precisely how many prisoners have mental illnesses. Figures from NHS England in March 2017 showed that nearly 8,000 prisoners, 10% of the prison population, were receiving treatment for mental illness in prison. It is estimated that 37% of NHS expenditure on adult healthcare in prisons is on mental health, which is more than twice the proportion within the NHS budget as a whole. The Public Accounts Committee also found that imprisonment can exacerbate mental illness, due to what it describes as,
“a deteriorating prison estate, long-standing lack of prison staff and the increased prevalence of drugs in prison.”
This is highly relevant to the Bill, given that parole hearings are likely to take place some considerable time after sentencing.
The World Health Organization points to several factors that have negative effects on the mental health of prisoners, including exposure to violence, enforced solitude or, conversely, lack of privacy, absence of meaningful activity, insecurity about the future and inadequate mental health services. Prisoners with mental health issues are often subject to bullying and extortion; they may even have their medication stolen. The Royal College of Psychiatrists has expressed concerns that its members are unable to deliver adequate mental health services in prisons.
These points bear repeating here because they demonstrate both the scale of mental health problems in the prison population and the potential for mental health to deteriorate during imprisonment. By extension, mental capacity may also change during imprisonment, given that, as defined within the Mental Capacity Act 2005, lack of capacity may be related to mental health, learning disabilities and neurodegenerative conditions such as dementia. The charity Rethink and other experts believe that these particular conditions are likely to be overrepresented in the prison system. Capacity is also specific to a given decision, rather than universal, meaning that a person who lacks capacity for some kinds of decisions may well be able to make others. The Mental Capacity Act code of practice is clear that a person can have capacity to make decisions in certain areas—for example, deciding what activities to undertake—while lacking it in others, such as a decision to disclose information. The potential for capacity to change over time, particularly with mental health conditions such as dementia, is especially relevant here, as the Government are rightly focused in the Bill on the present position. This makes it all the more important that parole boards are directed to take into account the current capacity of an offender to disclose information about a victim, the presence of mental illness at the time of the hearing, the place of the offender in their mental health recovery and their compliance with any treatment for mental health conditions.
As the Bill is presented, it would indeed be possible for the Parole Board to take these matters into account in the very broad discretion provided by each of the relevant clauses. This could also be amplified in any guidance provided to the Parole Board, but I contend that the Parole Board is not directed with sufficient precision to consideration of whether refusal to provide the relevant information is deliberate, and hence culpable. As the consequences of deliberate nondisclosure are, and are intended to be, serious, the test to be applied by the Parole Board should explicitly reflect this.
To conclude, my amendments would ensure, first, that specific focus is placed in that broad discretion on whether the refusal to disclose information is deliberate and therefore culpable, hence also relevant to consideration of the likely risk that the prisoner will pose; and secondly, that when considering questions of the prisoner’s capacity to make the decision to refuse to disclose the information, the Parole Board is doing so by express reference to the provisions of the Mental Capacity Act 2005. This is of no little importance, given the time-specific nature of the test for capacity in the Act. The focus of the Parole Board’s attention should be on whether the prisoner currently has the capacity to make the decision, rather than the position historically. This will be of particular relevance where the prisoner has a progressive condition such as dementia.
The Parole Board’s broader discussion to take account of all other relevant factors remains unfettered by the amendments. I urge the noble and learned Lord to consider these amendments and the attempt behind them seriously. I believe that they in no way undermine this important Bill; rather, they strengthen it by directing the Parole Board explicitly to determine whether prisoners’ withholding of information is deliberate, conscious and therefore culpable, and not unimportantly a potentially legitimate signifier of continued risk. I beg to move.
My Lords, I will speak to Amendments 2 and 4, to which I have added my name. I am most grateful to the noble Baroness, Lady Bull, for her introduction to the group. I too completely understand the policy reasons that have given rise to the Bill. I have the deepest sympathy for those who feel that they can have no closure until they are given the information that the Bill refers to.
A tragic headline in the Scotsman only three weeks ago read:
“We cannot say goodbye until Suzanne is found.”
This was a reference to the case of Suzanne Pilley, of whose murder her former lover, David Gilroy, was convicted in 2012. It is now 10 years since she went missing, and her body has still not been found. Her family believe that he is the only person who knows where it is. The problem is that Gilroy has maintained throughout, despite his conviction, that he is innocent. He says that he cannot reveal where the body is and that it had nothing whatever to do with him. There seems to be no way out of this impasse, but the family’s distress is very real and very deep. As the noble and learned Lord, Lord Mackay of Clashfern, said, sadly, it is not always possible to find a just solution to their pain.
However, we need to be very careful about exactly what it is that the Bill is trying to achieve—or, to be more precise, about the test that the Parole Board is being asked to apply when it takes non-disclosure into account. The noble and learned Lord, Lord Garnier, was quite right in his understanding that our amendments seek to leave it with the Parole Board to make the judgment. As the noble Baroness, Lady Kennedy of Cradley, said at Second Reading in the Chamber in April, this is not a “no body, no release” Bill, although that is what some campaigners would have preferred. We need to be clear: is the Bill about simply delaying release as a punishment, or securing the release of information? Surely, it is only by securing the release of the information that the board will be able to give closure to those most affected. I hope the Minister will be able to confirm that it is the latter and that the point of the Bill is to strengthen the power of the Parole Board to encourage disclosure. “Encourage” is perhaps too mild a word because of course, we have to face the fact that disclosure must have been asked for repeatedly, time and again, ever since the prisoner was first interviewed by the police. Nevertheless, one can only hope that, however this is done, the board will be able to achieve that objective.
It is worth bearing in mind, too—I hope that the Minister can confirm this—that we are contemplating a conversation between the board and the prisoner which may take place many years after the date when the crime was committed. That is because the board cannot begin to consider the prisoner’s case for release until their case has been referred to it by the Secretary of State. That, at least, was the system I worked with when I was the Lord Justice General in Scotland. As I understand it, this system continues to be used for public protection decisions under the Crime (Sentences) Act 1997, which this Bill seeks to amend. A case cannot be referred until the tariff component of the life sentence has been served, which nowadays for murder is normally not less than about 15 years. The timing is important, because, as the noble Baroness, Lady Bull, pointed out, imprisonment is likely to exacerbate poor mental health. The longer the period in prison, the greater its effect will be, so these will not be easy cases.
I greatly respect the work that is done by the Parole Board. I attended a number of its meetings in Scotland when I was Lord Justice General, as I needed to know how it went about its work in connection with some of the duties that I had to perform in that capacity. I found that great effort is put into gathering information about the prisoner, including their mental state, from a variety of sources, so that when it comes to consider making a public protection decision it does not start with a clean sheet of paper. It will almost certainly have a very large bundle in front of it to work through and study. It will also have to bear in mind that it may need to give reasons for its decision, especially when issues about non-disclosure come up. That is why I suggest that, in fairness to the board as well as to the prisoner, absolute clarity is needed as to exactly what the board is expected to look for when dealing with these very sensitive cases. It needs to be understood as well that this issue will become critical only when everything else in the prisoner’s history and conduct points to release.
At Second Reading, the Minister said that the subjective test that the Bill lays down will enable the board to distinguish between cases where, for example, the non-disclosure is the result of a psychiatric disorder or where it is a deliberate decision not to disclose. As I understand it, “subjective” means nothing more than that it is for the board to form its own view when making the public protection decision. That is as it should be, and our amendment would not disturb that in the slightest.
This still begs the question as to what precisely the board should look for when it comes to a non-disclosure decision where a reason as to whether to delay a release that would otherwise be appropriate may need to be given. With great respect, I think that the Minister was right to distinguish between a psychiatric disorder on the one hand and a deliberate decision on the other. The implication of what he said is that, if it is the former, the non-disclosure should not count against the prisoner when considering their case for release—for it to do so would be to adopt the unacceptable “no body, no release” approach. However, if it was deliberate, it should indeed count against them, with the further implication that they would probably not be released until they made a disclosure. As I understand it, if that is what the Bill seeks to do, the fact that the non-disclosure must be regarded as deliberate if it is to be taken into account needs to be stated clearly and unequivocally in it.
I support the noble Baroness’s amendments because this degree of clarity is missing in the Bill. The clarity that I suggest we need can be addressed in one or other, or both, of two ways. The first is simply, as Amendment 2 proposes, to insert “is able to but” in new Section 28A(1)(c) before “not disclosed” This would make it absolutely clear that the Parole Board should look for a decision that could be regarded as deliberate because the prisoner was able to disclose the information and their refusal may hopefully be changed by the threat of delayed release, so that the families could obtain closure. If the non-disclosure is not deliberate—for example, if the prisoner cannot help it due to mental disorder and is not able to address the point at all—delayed release until disclosure, which could never happen because of their state of mind, would be wholly unfair and unjust.
The second way, as Amendment 4 proposes, is to make express reference to the prisoner’s mental capacity as a factor that must be taken into account. The two amendments would give clarity to these provisions without in any way undermining the overall purpose of the Bill and the discretion of the Parole Board. They would, however, help the Parole Board in the performance of this new statutory duty.
I hope that the Minister will feel able to look very closely at these proposals. The board needs to know, with as much precision as can be achieved, what this measure expects it to look for when taking non-disclosure into account as grounds for delaying release when making the public protection decision. That is what subjecting it to a statutory duty requires.
My Lords, I will address the same amendments in this group as were listed by the noble Baroness, Lady Bull. Amendments 5, 6, 9, 12 and 15 will be addressed by my noble friends Lord Thomas of Gresford and Lord German. I declare an interest as a member of an advisory board at the charity Rethink Mental Illness.
Like the noble Baroness, Lady Bull, I want to draw attention to the decisions being taken about a prisoner’s state of mind and their mental capacity to answer questions relating to the release of information about bodies. I was a member of the scrutiny committee in your Lordships’ House that did the pre-legislative scrutiny on the Mental Capacity Bill. Like the noble and learned Lord, Lord Mackay of Clashfern, I took part in the passage of that Bill through Parliament. I was part of the body that reviewed it and have subsequently been one of the Peers who participated in the Mental Capacity (Amendment) Bill.
When the post-legislative scrutiny of the Mental Capacity Act took place, it became very apparent that while it is widely regarded as being a very necessary and very innovative law, it is a law which is largely misunderstood and often ignored in practice. Some professionals, particularly in the world of health and social care, are very adept at understanding the concepts behind the Mental Capacity Act and are deploying them in their everyday work, but they are few and far between. Noble Lords who have listened to the noble Baroness, Lady Finlay, may have picked up on the fact that even within the medical profession, many practitioners simply do not understand what mental capacity and the tests of it are under this legislation.
During the review of the Mental Capacity Act, we spent virtually no time looking at the questions of how the Act is used within the criminal justice system, and I suspect that that was because it is not widely understood. As the noble Baroness, Lady Bull, made clear, the Mental Capacity Act rests upon the capacity of a person to make a particular decision at a particular time. It is not lawful to make a read-across from a person’s incapacity to make one decision to an assumption that they cannot make another. Therefore, in every case, it is for the Parole Board to decide at that point whether the prisoner has the capacity to withhold information, and that may vary over time.
It is right that we should discuss this, and we should look at putting these provisions in the Bill for three reasons. First, there are some conditions under which mental capacity can fluctuate. As mentioned by the noble Baroness, Lady Bull, some mental health conditions—the effects of drug and alcohol or degenerative diseases, the onset of dementia—may mean that over time the capacity of a prisoner to release this information diminishes.
The second is that there needs to be training and good practice for all practitioners throughout the criminal justice system in determining mental capacity. That includes members of the Parole Board. I wonder whether, in his summing up on this amendment, the Minister might say what training members of the Parole Board have and what guidance is available to them in making determinations under the Mental Capacity Act. Do they call on Mental Capacity Act practitioners, as people in social services do when they come to determine the capacity of an individual to make any decision?
In saying all this, I am acutely aware that, in some of these cases, the crimes happened a very long time ago. I understand that Helen McCourt’s case was one of the first in which DNA evidence was used. Some prisoners who have been in prison for a very long time could be victims of a miscarriage of justice. It is extremely important when we look at their refusal to impart information about the whereabouts of a body that we do so with great care and make sure that we are not misjudging a lack of mental capacity.
My Lords, I am addressing Amendment 5 and the subsequent amendments to the same effect in relation to similar subsections in the Bill. I did not have the opportunity of speaking at Second Reading, so perhaps I can make one or two observations before I come to my amendments.
First, it is my experience that prosecutions where there is no body are comparatively rare. They do happen, but I recall only three or four cases in my own career where such things took place. If the Minister has information on this, I would be interested to know how many people subject to the provisions of the Bill are currently incarcerated in prison.
The noble Lords, Lord Blunkett and Lord Mann, referred to the Moors murders case. I was present in court at the Chester Assizes during that case as a pupil in support of the late Lord Hooson, who appeared on behalf of Brady. I can testify to the distress and huge impact that that case had on the families of victims— but not only them. It had an impact on the counsel who appeared in the case and indeed, I believe, on the judge.
Brady subsequently attempted, many years later, to take the police to places where he said he had buried bodies—to no effect. We cannot know whether this was a genuine attempt on his behalf to uncover the remains or whether he was simply, as has been put earlier in this debate, grinding the knife into the victims’ families. It is a terrible indication of what can happen to families in these circumstances.
My other point relates to the amendment from the noble Lord, Lord Blencathra. He relied on medical evidence, almost putting it in the place of the Parole Board. I prosecuted a double murder from mid-Wales which gave me a particular view. It was not a case where the bodies of the two victims were not available, but the defence was diminished responsibility. On the side of the defence in the original trial were no fewer than five psychologists and psychiatrists, giving evidence about the mental capacity of the defendant. On the prosecution side, there were four such expert views. After the conviction of the defendant, having observed their cross-examination in the witness box, one of the witnesses on behalf of the prosecution decided that the defendant really did suffer from mental incapacity. An appeal was launched on that basis. It was successful and there was a retrial in which there were then six experts for the defence and three for the prosecution. The defendant was still convicted of murder at the second trial by a majority of 11 to one.
What impacted on me was that members of the medical profession are accustomed to taking a history from patients, which they accept. There is no questioning of what they are told to any great degree. Therefore, to put the decision on the release of a prisoner undergoing life imprisonment in the hands of medical people is, to my mind, wrong. There should be a proper judicial process. I do not agree for a moment with the noble Lord, Lord Blencathra, that the Parole Board will swallow any guff put before it—that is simply not what experience tells us.
Turning to my amendments, I was much impressed by the speech of the noble and learned Lord, Lord Garnier, at Second Reading, in which he made points that he has repeated today. It occurred to me that his problem was, as the Minister described it, that giving a sentence for a separate offence of failing to disclose the whereabouts of remains would be ineffective because it would have to take place immediately and concurrently and could not be brought into effect at some indeterminate time in the future.
My mind turned to the Newton hearings, which are commonplace in court and in which a judge will determine, without a jury, when an issue is in dispute. It seems to me that a proper way of dealing with these cases would be that, if there was a dispute and the judge could ascertain that, then there should be a trial on that issue before sentencing. For example, the judge could announce after a jury’s verdict or after a plea of guilty that he would sentence on the basis that there had been a culpable and deliberate concealment of the remains.
If issue were taken by the defendant with that indication from the judge, a trial could be held on Newton principles, whereby at the time of trial—very much closer to the events with which the court was concerned—it could be determined whether the defendant had mental capacity and to what degree he was culpable. Prior to sentencing, the judge could come to a conclusion. In his sentencing remarks, he would make quite clear the degree to which the tariff was being extended by reason of a finding of culpability, and that would be built into the system so that the Parole Board would not consider the matter until the tariff had been completed. That would seem sensible, and the victim’s family would know from the very beginning that there had been a finding of culpability that had affected the sentence.
The problem at the moment is that the Parole Board comes to conclusions on issues that might be 15 or 20 years old, relying on medical and any other evidence before it. However, if a Newton hearing had taken place, the Parole Board would be very much strengthened in the view that it took.
I appreciate that with many prisoners currently serving life sentences or sentences of extended degree there will never have been a Newton hearing. However, if the provision that I suggest in my amendment were adopted, it would encourage judges, who could be given directions by the senior judiciary to follow that course, first, to say that they would deal with the defendant on the basis that he was culpable and, secondly, to hold a Newton hearing. In future, this might be a much more satisfactory way of dealing with matters than the current situation, in which the Parole Board looks at the matter with a lower standard of proof many, many years later.
My Lords, I support Amendment 2 and the other amendments in the name of the noble Baroness, Lady Bull. I contributed to the Second Reading debate on the Bill a few weeks ago in the Chamber, where the noble Baroness made a powerful speech. Like other noble Lords, I welcome the Bill and pay tribute to the campaigners who have got us to this point.
The amendments before us allow us to have a debate on the detail of the issue in question. The balance that has to be stuck here is between justice and the denial of a funeral to a victim’s family, which brings further pain and distress to a family denied the ability to grieve properly, a prisoner with mental health issues and respect for human rights. These are extremely difficult issues that have to be approached with thoroughness. Decisions being made clearly and victims being listened to are an important part of the work that we expect the Parole Board to do.
The Parole Board has to take account of several factors in making its decisions. I have never met a member of the Parole Board, unlike my noble friends Lord Blunkett and Lord Ponsonby, but the Parole Board deserves our support in the difficult job that it is asked to do. I do not doubt that it undertakes its responsibilities with the utmost seriousness, making difficult and important judgments independently, and I wholeheartedly endorse the comments of the noble and learned Lord, Lord Hope of Craighead, in that respect.
The noble Baroness, Lady Bull, has posed a number of points for the Minister to address about the state of mind of the prisoner at a particular time as well as the prisoner’s mental capacity. I very much see the point that the noble Baroness is making: that these issues should be taken into account at the time of the hearing. I look forward to the Minister’s reply on these points and on other points made by noble Lords.
My Lords, I support the amendments in the second group in the name of the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope, particularly in relation to Amendments 2 and 4, which are reiterated in subsequent amendments. I reinforce my full support for the Bill and congratulate the Government on bringing it forward.
I support the concept of removing any discretion to disregard non-disclosure by prisoners when Parole Boards are reviewing their cases. This is because there is a very small minority of people who may have severe mental health problems but who are also well able to give the impression that they have complete amnesia. I was interested in what the noble Lord, Lord Thomas of Gresford, said earlier about healthcare professionals believing what they are told by people with mental health problems. I actually worked in Broadmoor and introducing as part of the concept as a trainer that you should not read a patient’s records until you had got to know the patient a bit. That is sometimes quite shocking because you trust people but then find that significant things they have told you are in fact extremely inaccurate. So we must be clear that medics are not on the whole easily fooled by the very small minority of people who are able to display very significant selective amnesia.
Of much more interest to me at the moment in relation to this Act is that the Mental Capacity Act 2005 and its subsequent amendments, as referred to by other noble Lords, particularly the noble Baroness, Lady Barker, indicate that we have a growing population with significant acquired brain injury, severe psychosis and, of course, a range of neurodegenerative progressive disorders, known largely as the dementias, which mean that prisoners who have been in prison for 15 to 30 years may well have developed cognitive difficulty during the period of their imprisonment. When they then apply to the Parole Board, it is right that they have full access to a medical assessment in line with their human rights. I believe there will be a proportion of people who apply in this way who do not have sufficient cognitive ability at the time when they come to the Parole Board that they will be able coherently to remember the kind of issues that we have raised during this debate.
In summary, I support the approach of the charity Rethink Mental Illness that these amendments would provide an explicit reference to mental capacity, meaning that there would be consistency adopted by Parole Boards when reviewing individual cases. I would like to see the amendments supported, but I am also very aware that, in the review of the Mental Capacity Act, we were able to deal with some things by ensuring that they would be put into guidance for practitioners. That may be something to consider in relation to the amendments tabled by my noble friend Lady Bull.
I wish to speak in favour of this group of amendments, particularly those tabled by the noble Lord, Lord Thomas of Gresford.
Where a Newton hearing has taken place in respect to the relevant facts of an offence, it makes sense that those findings must be taken into account by the Parole Board when making a decision affected by the Bill. In effect, a rigorous “mini-trial” has been carried out, and a judgment given, so this information should quite obviously be used by the Parole Board.
In some circumstances, this might go in favour of the prisoner; in others, it might go against them. Either way, justice will be served by using the proceeds of Newton hearings. Without doing so, the Parole Board is at risk of ignoring or contradicting the findings of the Newton hearing which set the grounds for the prisoner’s sentence in the first place. That would not make sense and would create ripe grounds for judicial review of the Parole Board’s decision. It is almost inevitable, I would have thought, that a judicial review would conclude that it must be taken into account by the Parole Board. In the interests of clear legislation, and for the clarity of prisoners and victims, the Government really have to accept these amendments.
My Lords, I wish to speak briefly to the amendments tabled by my noble friend Lady Bull, and to support them, but before turning to that, I will make two points.
I entirely agree with and support the purposes of the Bill because, as has been shown on so many occasions, closure is impossible to achieve to any degree without knowledge of what has happened to the body of the deceased. However, there is another observation which it is important to make. If there is to be a proper review and recasting of the Parole Board system, which is long overdue, it is not sensible to make piecemeal amendments at this stage. Therefore, I urge that this Bill be passed without significant amendment.
The only amendment which I support, and I do so warmly, is that tabled by my noble friend Lady Bull. My reason for doing so is very straightforward. It is my experience that, when hearing evidence, trying to determine whether someone has had memory loss and whether that loss is genuine is an extremely difficult exercise. Medical opinion may well vary on either side of the argument. Therefore, it is very important that, if there is a case in which mental capacity or the mental state of the convicted person is to be examined, it is done very carefully before the board. It seems self-evident that if, after a long time in prison, a person is to be considered unsuitable for release because disclosure of the whereabouts of the body or other matters has not been made, the judgment should take into account, if the question arises, whether the prisoner has the mental capacity to recall the events, whether his mental health permits him to do so or whether this is all phony. That is a difficult determination and it should be done by the board.
I do not suggest that the Committee should adopt the other amendments. I will say one thing to try to clarify what has been said in relation to findings of fact made by the trial judge. As Schedule 21 requires a court to have regard to concealment of the body, it is my experience that invariably a judge has made findings, either set out in his sentencing remarks after clarifying matters if the plea is one of guilty, or after hearing evidence and reaching his own determination of the matter. In my experience also, a person who has not disclosed the whereabouts of the body, even for a relatively short period of time, is normally considered for a longer sentence because of that fact.
It is important for this Bill and for the Parole Board to bear in mind that the judge will have made findings many years before, and it cannot be right that someone is punished again if he has already been punished for non-disclosure of the whereabouts of the body. However, it seems to me right in principle that the suitability for release, which is a different consideration, is something to which the Parole Board can have regard, particularly taking into account the mental capacity and mental health of the prisoner, and a very careful distinction has to be made.
As the process of time at which the second assessment has to be made is very different to the original assessment by the trial judge, for which the prisoner will have been punished, it seems that this is pre-eminently a matter for the Parole Board having regard to all the factors that were before the judge, and all the evidence and other factors that are before it. In reviewing decisions of the Parole Board, my experience has been generally that it sets about matters of this kind with great care and takes into account all the evidence. I would leave the discretion to the Parole Board, subject to making it very clear what is put forward in the proposed amendments in the name of the noble Baroness, Lady Bull. I do not think that any further amendments to the Bill are required.
I have listened to what has been said in the debate so far with considerable interest. I am afraid that I was unable to attend Second Reading, but I have read the transcript of it with particular interest, and I am bound to say that what the noble and learned Lord, Lord Garnier, had to say then was particularly important. I have been helped in my consideration by what has been said in the debate today.
We start off with the fact that anybody who knows victims who have been put in the position of those who were the sponsors of the legislation which we are now considering knows that what they had to go through because they were not able to find out what happened to their deceased relative causes the greatest anguish. They certainly deserve to be protected from suffering any more anguish than is absolutely necessary. The question before us is: what is the best way to achieve the redress to which they are entitled, bearing in mind the practicalities of our criminal justice system?
I was also very impressed by what the noble Lord, Lord Thomas of Gresford, said, and his reference to a Newton hearing. That deserves important attention, because it is a way of achieving the best possible result when this sort of problem has to be considered. The prisoner should know that if he is voluntarily failing to disclose information that he has, there is a risk that he will suffer a substantial increase in the period for which he is detained. That is the most likely thing to produce the result that anyone must hope for. And if that be so, the question is: what is the best way to achieve this in a just manner? It has to be done in a just manner, because if it is not, there is a danger of making the prisoner, quite undeservedly, the subject of some concern and sympathy.
That brings me to the Newton hearing, because I believe this is best left in the hands of the trial judge. I think that the noble Lord, Lord Thomas of Gresford, said the same thing—indeed, so did the noble and learned Lord, Lord Thomas of Cwmgiedd. The judge has been listening to the trial and he knows the facts of the trial, so for him to deal with it is ideal. Otherwise there can be difficulty. What the noble and learned Lord, Lord Mackay of Clashfern, said about the sort of problem that could arise indicates why it could be important for the judge to deal with it. If he told the defendant that he was going to deal with it, there could be a Newton hearing in public, in which the victims would see that the matter had been investigated properly, and have the judge’s knowing response to what was causing them concern.
If at the end of the trial there were any reason for a prisoner to say, “I can’t recall”, or “I can’t give you information because I didn’t deal with what happened at that stage”, people would hear it, and hear the prisoner being questioned and cross-examined about it. The relatives of the deceased, too, would hear that process being conducted, so they would know that it had been fully investigated. If, as I believe would happen in most circumstances, the judge came to the conclusion that the defendant was erecting a smokescreen to try to hide what he was doing, which was so malicious, the judge would find the matter, and in due course it would, as the noble Lord, Lord Thomas of Gresford, pointed out, be taken into account by the Parole Board.
It has been suggested that that should be done much nearer the time of the questioning being considered by the Parole Board—but I suggest that a better time would be not later in the day, when all sorts of other matters can arise to muddy the water, but immediately after the trial. The record on Newton hearings is very good; they have resolved problems where facts have needed to be resolved, and that is a process which can be conducted fairly.
It is also important that the situation should be one where justice has been done. If it is done in the way that would be carried out at a Newton hearing, that would be achieved. Although the amendments put forward so far may not satisfactorily deal with the situation, I suggest that there is plenty of time before the Bill becomes law to achieve what is suggested in the amendment I am addressing, as put forward by the noble Lord, Lord Thomas. I suggest that is the sensible thing. One of the advantages of a Newton hearing is that the procedure which takes place is short and curtailed at the end of the trial.
My Lords, I too was precluded from taking part at Second Reading, but I have read the transcripts in Hansard. There are two substantive issues in this group of amendments, and neither of the two sets takes away the required subjectivity of which the Minister has spoken.
The amendments tabled by the noble Baroness, Lady Bull, supported by the noble and learned Lord, Lord Hope, and my noble friend Lady Barker, seek to ensure that the prisoner has the mental capacity to provide the disclosure information required. The Mental Capacity Act 2005 defines mental capacity by saying that
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
It follows that the Parole Board would need to have received the appropriate professional advice that this test of capacity would not apply. If the advice was that the prisoner lacked the mental capacity under this definition, that would be a material fact for the Parole Board to take into account.
It is presumed that the prisoner could therefore not be expected to provide an answer to the disclosure question if the test was not passed. This test is also a relevant issue in the decision to be taken by the Parole Board on grounds of public safety, which of course is the pre-eminent thing that it has to do. Many noble Lords have outlined in debating these amendments that the Parole Board’s task is to determine whether failure to disclose is both deliberate and culpable. These amendments provide more precision for the board to make its decision.
I now move on to the amendments in the name of my noble friend Lord Thomas. They have the intention of providing the Parole Board with an increased level of relevant information on disclosure by including the issues raised by Newton hearings. A Newton hearing may be held where a defendant has been found guilty at trial or has entered a plea of guilty but the issues in dispute which could affect sentencing were not resolved by the verdict of a jury. In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner: in front of a judge. This includes that it can call witnesses to give evidence if required. If the issue is within the exclusive knowledge of the defendant, as is the case with the situations defined in the Bill, they should be prepared to give evidence as well. Where they fail to do so without good reason, the judge may draw such inferences as they think fit. This increased level of information would become available to the Parole Board when taking into account the issue of disclosure in considering parole if these amendments were in place.
At Second Reading in the House, and in Committee today, as mentioned by the noble and learned Lord, Lord Woolf, noble Lords have pressed the Government to make non-disclosure an offence at the time of a first trial. My noble friend’s proposal seeks to take the intention of the words of the noble and learned Lord, Lord Garnier, and put them into an established legal framework. Newton hearings may be a fairly recent legal procedure, but in the matters relating to the purposes of the Bill such a hearing could have a profound effect on the outcome for the victims. Justice is not just a point in time for them; it can last a long time, and for some a lifetime. For victims, coming to terms with their grief, anguish and hurt can last forever. That is why the justice system has to do everything in its power to make this coming-to-terms period as short as possible.
The amendments to this tightly drawn Bill do not determine that there shall be a Newton hearing but simply that, if one has taken place, the Parole Board shall take note of its proceedings, which will provide it with internal and external information—for which I am sure it would be grateful—and will determine whether there was remorse and whether the perpetrator had knowledge of his or her victims that he or she had chosen not to disclose. It may be easier to achieve this disclosure, and hopefully provide solace to the victims, at this early stage.
While these amendments do not require that there are Newton hearings, their inclusion in the Bill would send a powerful message to the judiciary of the significance of such a hearing, particularly its impact on victims, and therefore they might become a regular feature in future—but they are not part of the Bill. I commend these amendments to the Minister and look forward to a positive response to these proposals.
My Lords, as the noble Lord, Lord German, has just said, there are essentially two groups within this single group of amendments. The first was introduced by the noble Baroness, Lady Bull, on mental capacity and making sure that the Mental Capacity Act 2005 is properly taken into account in the Parole Board proceedings. I was persuaded by the argument of the noble Lord, Lord Thomas of Gresford, that while we should not do piecemeal reforms of the Parole Board system—I anticipate that the Minister will say there will be a larger-scale review of the Parole Board system—this aspect of the mental capacity of the offenders who come before the board should nevertheless be taken into account.
The noble Baroness, Lady Bull, was very persuasive in her speech. She alluded to my noble friend Lord Bradley’s report, in which he pointed out that it is unknown how many people in our prisons have mental disorders. As the noble Baroness, Lady Bull, said, it should be no surprise that quite a lot of prisoners’ mental capacity deteriorates because of their time in prison, for the reasons she gave in her speech. The other point she made was about dementia. We are often dealing with people on very long prison sentences, and dementia is becoming an ever more real issue. For those reasons, I support the amendments in the name of the noble Baroness, Lady Bull.
The amendments in the second part of this group were introduced by the noble Lord, Lord Thomas of Gresford, who spoke about Newton hearings as a possible way of resolving this conundrum. I have some experience of Newton hearings in a much lower capacity in magistrates’ courts. I regularly have Newton hearings, trying to resolve whatever the issue of the day is. My experience is that, in practice, it is quite difficult to narrow the issues and look just at the issue in dispute in a Newton hearing. It is very often the case that the wider events surrounding the events as a whole are brought into the case, even when one is trying to narrow the issue.
While I understand the suggestion and think it interesting, I am also mindful of the points made by the noble and learned Lords, Lord Mackay of Clashfern and Lord Thomas, that the sentencing judge will have heard the whole case in any event and can explain their view on the reason the offender has not disclosed the location of the body and make it quite explicit whether there is an uplift to the tariff because of the way the offender has behaved. I am open-minded on that point; I have just raised some questions that arise from my own experience in the lower courts.
Nevertheless, these amendments are interesting and constructive. I hope that, when he comes to reply, the Minister will treat them in that way.
I thank noble Lords and noble and learned Lords for their contribution to the debate prompted by these amendments. I begin with a number of general remarks which may well be familiar to noble and learned Lords, but perhaps not to everyone.
I believe there was a reference at one stage of the proceedings to early release, and I emphasise that we are not dealing here with any issue of early release. As I mentioned in response to observations from the noble Lord, Lord Adonis, we are generally dealing with a life sentence or extended sentence, and when we come to look at that, we can identify two elements—in what I shall refer to as a life sentence. There is the punitive element, which is the tariff fixed by the court, and a preventive element, which is the issue addressed by the Parole Board in the context of public protection. The Parole Board’s role comes into play only at the end of the tariff—the punitive element of the sentence—at which point the Parole Board has to determine whether there should be a continuation of custody or a release under licence, having regard to the public protection test.
The noble and learned Lord, Lord Thomas, was quite right in observing that in most, if not all, of these cases, the judge will have made findings in fact that will address, among other things, whether there has been disclosure of a victim’s whereabouts. If that becomes an issue, there is scope for what is termed a Newton hearing. But generally, the trial judge—whether after plea or after trial—will be in a position to make findings in fact on that issue, and to then reflect those findings in fact in the tariff he imposes upon the individual in question when applying the punitive element of the sentence. I emphasise that because the noble and learned Lord, Lord Thomas, made the point that there should not be punishment again. That is quite right: it is not the role of the Parole Board to punish. The role of the Parole Board is to determine, by reference to the public protection test, whether at the expiry of the tariff it is appropriate for an individual to be released from custody, albeit under licence.
That takes me to an observation of the noble and learned Lord, Lord Hope, who asked whether the object of this legislation is to delay release as a punishment. The answer is clearly no. The issue being addressed is in the context of public protection, and whether the failure to disclose indicates to the Parole Board that there is a very real and material question about public protection, and whether someone should be retained in custody. Indeed, if the object of this legislation was to punish, it would potentially be in breach of both Article 5 and Article 7 of the European convention. I stress that this is not the object of this legislation at all.
I turn specifically to the amendments tabled—first, to those in the name of the noble Baroness, Lady Bull, which really have two limbs. The first is covered by Amendments 2, 7, 10, 13 and 16, and the second by Amendment 4 and subsequent amendments. The first limb would ensure that the Bill’s provisions apply only to prisoners who are “able” to disclose relevant information about the location of a victim’s remains but had not done so. The second limb would particularise a prisoner’s mental capacity as one of the possible reasons for non-disclosure.
The Bill in its current form affords the Parole Board a wide scope to subjectively consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, an independent judicial body with experience of assessing risk and evidence, sufficient flexibility to take all circumstances into account when making a determination about non-disclosure, including the ability, whether mental or physical, of an offender to disclose.
The amendments as drafted would confine the operation of the provisions to prisoners deemed able to make such a disclosure but who had not done so. However, there may be cases where an offender has had ample opportunity to co-operate with the police or the authorities over many years to reveal a victim’s whereabouts but has refused to do so. If such an offender later became unable to disclose—by reason of age or mental illness, for example—the provision of these amendments would not apply to that offender and the board would be unable to consider a previous refusal to co-operate in its assessment of that prisoner’s risk, yet these previous persistent refusals may well be considered as reflecting quite materially on the risk that the prisoner posed to the public in the event of release on licence.
The current Bill avoids such difficulties by allowing the Parole Board to consider all possible reasons in its view to explain non-disclosure, including considering historical refusals. That flexible approach is underlined by Clause 1(3), which makes clear that the imposition of the statutory duty does not in any way limit other matters that the board must or may take into account when conducting such an assessment.
The existence of mental health difficulties or a lack of mental health capacity would doubtless be a relevant circumstance to be taken into account, but there would also be other relevant circumstances. By not specifically referring to particulars in the Bill, we are not giving some more significance than others; we are instead allowing the Parole Board to use its expertise in how it approaches such cases. It is therefore for the board itself to take a subjective view of what the reasons might be, and then it is for the board to decide what bearing that information may have on the subsequent assessment of suitability for release, which is the relevant test that the Parole Board has to address.
We have deliberately avoided any delineation in the Bill of what the reasons for non-disclosure may be, to preserve this flexible and subjective approach. Noble Lords have correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure but there may also be other reasons, such as, as I mentioned, geographical change, mental impairment or issues of mental capacity that may not have occurred at an earlier point but will still be relevant to a current assessment. In these circumstances, I will be inviting the noble Baroness to withdraw this amendment.
I move on to the amendments tabled by the noble Lord, Lord Thomas of Gresford, which specify that where a Newton hearing has been carried out to ascertain certain disputed facts—generally where there has been a guilty plea, but it may take place after a trial—that should be considered by the Parole Board. The short point that I would make is that these are matters that it will be within the competence of the Parole Board to consider, and the board can call for all material pertaining to sentencing, including the terms of any Newton hearing that may have taken place. I apprehend that what the noble Lord may have in mind is perhaps to encourage judicial activity when sentencing in these cases to ensure that they address the non-disclosure of the whereabouts of a victim. However, as the noble Lord, Lord Thomas, observed, that is something that will invariably be taken into account by a trial judge in fixing a tariff for the sentence that he is going to impose.
If there is a dispute of fact that is material to the issue, there may be a Newton hearing, albeit my understanding is that they are not that common. I note the observation of the noble Lord, Lord Ponsonby, that, in his experience, they can in fact be quite difficult hearings to determine. I emphasise that they clearly are a relevant basis for consideration by the Parole Board and, therefore, the Parole Board already has the means to call upon such material if it wishes to do so.
The noble Baroness, Lady Barker, raised the question of the Parole Board’s competence to address issues of mental health. I would observe that, where such issues arise, the Parole Board is in a position to ensure that there is a suitable psychologist or psychiatrist board member of the panel who would be available when required. That expertise is available to the Parole Board when it comes to consider these cases.
The noble Lord, Lord Thomas of Gresford, asked a very particular question about how many offenders at present in prison will be subject to the provisions of the Bill. I cannot answer that question immediately, but I will take steps to see if that information can be ascertained. If it can be easily and reasonably ascertained, I undertake to write to him and place a copy of the letter in the Library.
I again thank noble Lords and noble and learned Lords for their contribution to this debate. It appears to me that we ultimately have a common objective so far as this Bill is concerned but, at this stage, I invite the noble Baroness to withdraw her amendment.
My Lords, the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, have indicated that they wish to speak after the Minister. I call the noble Lord, Lord Thomas of Gresford.
My Lords, I am very grateful to the Minister for his reply, but I think it is necessary to distinguish where there has been a plea of guilty and where there has been a plea of not guilty in a trial. Very often, when a person pleads guilty, he will, with the assistance of his legal team, put together a basis of plea, which is handed to the prosecution for consideration. If it accepts the basis of plea, there is no problem but, if there is an issue, a Newton hearing will be held to determine whether the prosecution which refuses to accept the basis of plea is correct or whether the defendant who is pleading guilty is correct. The judge will sentence accordingly.
That is one situation. Another is after a trial, when there has been a finding of guilt. Let us take a circumstance where a group of people have attacked an individual and one of the group says, “I didn’t take part”—indeed, I remember a case where precisely that happened; the defence was, “I was trying to discourage them so they’d go away”—but, at the end of the trial, the defendant is found guilty. At that point, the judge says, “I will sentence you on the basis that you are withholding information as to where the body was buried.” The defendant could then say, “I’ve been found guilty, but the others took the body away and I want to be heard on that, because I don’t know where they went and where the body was ultimately buried. You cannot sentence me on the basis of the facts the jury has found—that I was a party to a killing—when I don’t know where the body went.” That situation does not involve mental incapacity at all and such a situation should be investigated at the time and not 15 or 20 years later by the Parole Board doing its best, unassisted by medical evidence because it would not arise. It seems to me that issues of that nature should be determined prior to sentencing for the actual offence, whether there is a plea of guilty or a finding of guilt. That should involve a hearing of the sort that I have proposed.
Obviously, my amendment does not require the Parole Board to order a hearing. As the Minister anticipated, my purpose is to encourage the holding of Newton hearings where necessary. I do not believe that they are quite as rare or unusual as he suggests. In this particular instance, with proper directions being given generally to judges to hold Newton hearings where appropriate, they would be useful and helpful to the board’s ultimate determination. They would be of great significance concerning culpability.
My Lords, I accept what the noble Lord, Lord Thomas, has observed. In cases of this kind, the judge will wish to take into account the disclosure or non-disclosure of the whereabouts of a victim and the circumstances in which the offender can or cannot make that disclosure. There may be circumstances in which that might necessitate a Newton hearing, and so be it. That would be done contemporaneously with the determination of the tariff in the sentence. When later on we get to the preventive element after the tariff has been served, the Parole Board will be able to call for all that material, whether it be a Newton hearing or otherwise.
I hear what the noble Lord, Lord Thomas, has to say about the importance of determining these issues at the time of trial and sentence; I do not disagree with him at all. It may be that some element of encouragement will be given if it is required, although I take from the observations of the former Lord Chief Justice—the noble and learned Lord, Lord Thomas—that there may be little requirement to encourage in a matter that is dealt with in this way day in and day out.
My Lords, I refer the Minister to his remarks about historic refusals. Reading proposed new subsection (1)(c), I do not get the impression that it is talking about historic refusals and I do not think that anything in the noble Baroness’s amendments would cut the ability of the board to look at them. What the opening words of the subsection are talking about is a situation where the board
“believes that the prisoner has information”—
talking about it in the present tense so that the board can consider it in a situation where it thinks that the prisoner is able to do something. That is where the words suggested by the noble Baroness would fit in very well.
Would the Minister like to reflect carefully on exactly what subsection (1)(c) is talking about and reconsider his point as to whether these amendments would cut out historic refusals, which would be highly undesirable, of course?
My Lords, I am grateful to the noble and learned Lord, Lord Keen of Elie, for his comments and I have listened carefully to his response. I also express my gratitude to all noble and noble and learned Lords who have spoken in support of my amendments. Aside from generously sharing his considerable expertise with me in advance of today’s debate, the noble and learned Lord, Lord Hope of Craighead, helpfully extended my arguments to include the possibility that the convicted prisoner is not in fact able to disclose the information because, despite the findings of the court at trial, they are innocent. One hopes that this is rarely the case, but of course history shows that it can indeed be so.
I am also grateful to the noble Baroness, Lady Barker, who sounded a useful warning about the general understanding of the Mental Capacity Act and concerns about the extent to which it is drawn on and applied within the prison environment. She raised an important question about training for practitioners in the criminal justice system, including members of the Parole Board, in applying the provisions of the Act. The Minister responded to a point about competence, but I am not sure that he responded to the point about training more broadly to enhance understanding of the Act within the criminal justice system. Perhaps he would write to us on that point.
The noble Baroness, Lady Watkins, spoke from her position of vast experience, including in Broadmoor, and reminded us that medical personnel are usually well able to distinguish between genuine mental disorders and what was referred to earlier as “guff”. Her views of course bear considerable weight here.
I am grateful to the Minister for addressing the two limbs of my amendments in so much detail. Like the noble and learned Lord, Lord Hope, I was confused by his point about previous refusals not being taken into account. I am grateful to him for agreeing to reflect further on that, in response to the noble and learned Lord’s further comments. He argued that state of mind and/or mental capacity are just one of several reasons why disclosure might not be possible. However, given what we have heard today from the noble Baroness, Lady Barker, about understanding the Mental Capacity Act as it is applied within the criminal justice system, and the potential for the infringement of human rights, I contend that there is justification for expressly including this reason in the Bill.
The noble Lord, Lord Kennedy of Southwark, set out very clearly the difficult balance between the rights of a grieving family, who have been by extension the victims of a heinous act, and the rights of a prisoner, convicted of that crime but who suffers a mental health disorder or who, for whatever reason, lacks the mental capacity at the time of the Parole Board hearing to disclose the information requested of him. I know that every noble Lord who has spoken today is acutely aware of this tension and of the importance of this Bill, not just in putting the needs of victims at the centre of the justice system and helping grieving families to achieve closure but as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system.
My amendments do not seek to alter the intention of the Bill in any way. As the noble Lord, Lord German, pointed out, neither of the amendments takes away the subjective capacity of parole boards. They simply seek to add clarity through the insertion of the words “is able to, but”, and an explicit reference to consideration of mental capacity. I continue to believe that these simple amendments would support the Parole Board in the fulfilment of the new statutory duty that the Bill places on it by enshrining in law what government has already accepted: that parole boards need to take state of mind and mental capacity into account. This would empower them to do so with confidence and consistency.
I am very grateful to the noble and learned Lord for considering the amendments. I am disappointed that he has not been persuaded by my arguments and those of other noble, and noble and learned, Lords. However, for the time being, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendments 3 to 6 not moved.
Clause 1 agreed.
Clause 2: Manslaughter or indecent images: prisoner’s non-disclosure
Amendments 7 to 18 not moved.
Clause 2 agreed.
My Lords, we now move on to the group consisting of Amendment 19. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” if the question is put could make that clear in the debate. It takes unanimity to amend the Bill in this Committee. The Committee cannot divide.
19: After Clause 2, insert the following new Clause—
“Provision of information to victims’ families
(1) Where the Parole Board makes a decision for which it is required to take into account a prisoner’s non-disclosure under section 1 or 2, the Parole Board must inform the relevant persons of—(a) the timings of hearings where the prisoner’s release from prison is being considered;(b) the relevant persons’ rights in relation to requesting a judicial review of the Parole Board’s decision;(c) the length of the sentence that will have been served by the prisoner at the time of the hearing; and(d) any other rights that the relevant persons have relating to the provision of information.(2) The Parole Board must take reasonable steps to contact the relevant persons to ensure they have access to the information in subsection (1).(3) The Parole Board must provide the relevant persons with the information in subsection (1) unless they declare to the Parole Board that they do not wish to receive such information.(4) In this section, the relevant persons are—(a) where the prisoner’s sentence has been imposed for murder or manslaughter, the victim’s parents or guardians, children and siblings; or(b) where the prisoner’s sentence has been imposed for an offence relating to indecent images as defined by section 28B of the Crime (Sentences) Act 1997 (as inserted by section 1)—(i) the victim or suspected victim (if the victim’s identity is not known for certain) if the victim or suspected victim is over the age of 18; or(ii) the victim or suspected victim’s parents or guardians if the victim or suspected victim is under the age of 18.”Member’s explanatory statement
This amendment would require the Parole Board to provide the victim, suspected victim, or their family with information relating to the prisoner’s hearing.
My Lords, I was inspired to table Amendment 19, which stands in my name, by three experiences. The first was that, prior to the Bill’s Second Reading, I spent a considerable amount of time talking to Helen McCourt’s mother. She stressed to me the importance of families being informed fully and involved in hearings about release.
My second experience happened very many years ago. I knew Iris Bentley, and I watched her in her latter years as she came to the end of her decades-long campaign to obtain a pardon for her brother Derek Bentley. She was a woman of immense fortitude, diligence and grace. They are very different cases, but in both, the amount of time and effort it took for those women to seek and obtain justice from a system that largely ignored them was remarkable. They were two very strong, determined women who refused to be ignored. Not everyone is so resilient, and nor should they need to be. They should automatically be involved and included by the criminal justice system.
My third experience is that I lived for many years in a Pennine town. Anyone who did at that time could not be unaware of or unsympathetic to the suffering of the families of the Moors murder victims—and that suffering continues today.
From talking to Marie McCourt, I understand that there are at most 100 prisoners to whom this legislation would apply. There are not that many, but the families of their victims suffer perhaps more than anybody else in the criminal justice system. For them, not to be told that a release hearing will take place, nor where and when it will take place, is a trauma. These hearings might happen many years after there has been a conviction, but their importance to victims and victims’ families never diminishes. One needs only to look at what happened to the victims of John Worboys to know about the importance of making sure that people are informed and included.
By the time a release hearing is reached, relatives who are desperate to know what has happened to their loved one are running out of time and the means to compel the prisoner in question to tell them what has happened. It is wrong not only to ignore them but not to advise them that they might not be involved in something that they might see as their last hope of achieving a resolution.
My amendment would place in the Bill that it is the right of relatives to receive information about the timing and location of a release hearing and about their rights, particularly in relation to judicial review. In putting this in the Bill, my intention is that the Parole Board will know right from the moment that the sentence is passed that it is under an obligation to maintain contact with victims’ families and that the onus is on the board, not the families, to maintain contact. It is not unusual for families to be told that they have not been contacted because they have moved or their details have changed, and the Parole Board has simply failed to keep their details up to date.
Release hearings and the prospect of release are a time of heightened anxiety for victims’ families. It can be a grave disappointment that there is no further prospect of the prisoner disclosing information about the victim, but for some there is also the knowledge that the perpetrator will be released into the community and might well know or discover where their victim’s family lives. I know that victims are very fearful of that. At that time, the onus should be on the Parole Board to keep victims’ families fully informed. It is the very least that they should expect. This might be a seemingly simple procedural matter, but it is of immense importance to people who are victims of these prisoners. Therefore, it is in that vein that I beg to move.
My Lords, I support the amendment. I agree with the noble Baroness, Lady Barker, that much more needs to be done to support victims in the parole process. The amendment would provide information rights for victims and their families, which are desperately needed. As I noted at Second Reading, many parents involved in the George case sadly found out about her release on Facebook or via the local newspaper. That is completely unacceptable. I am sure that every effort was made to contact the parents in that case, but the system places the onus on the victim or their families, as the noble Baroness, Lady Barker, eloquently set out. It is made their responsibility to opt in and keep in touch with victim liaison officers; it has to be the other way around. The Parole Board should have a duty to ensure that accurate information is given to victims and their families in an appropriate timeframe. The amendment would give them that reassurance.
I particularly welcome proposed new subsection (3). Rather than there being an opt-in approach, victims and their families should automatically be included in the scheme for information unless they opt out. In a meeting a few months ago, the Victims Commissioner and the chair of the Parole Board acknowledged that not all victims opted into the victim contact scheme. They noted that this caused distress to those who failed to opt in and who later discovered through third parties that the offender had been released. They agreed that the current requirement for victims to opt into the scheme was a concern. The amendment addresses that concern. In addition, technology should be developed to modernise information flow to victims and their families so that they can keep their contact details up to date and keep up to date with the details of the case.
The type of additional support outlined in the amendment will not only help victims and their families but help to build public confidence in the system. I hope that the Minister will highlight his support for the principles raised in the amendment, commit to improving the victim experience of the parole process and give assurances that the needs and experiences of victims and their families will be central to the pending review of the parole system. Will he indicate whether he is willing to discuss the amendment further before Report?
My Lords, I welcome the Bill and am sorry that I was unable to speak at Second Reading. I pay tribute to the ground-breaking work done by my colleague in the other place, Conor McGinn, following the campaign by Marie McCourt, the mother of Helen, who was tragically murdered and whose remains have never been found or their location revealed by her murderer, now released.
It is right that the refusal by serious offenders to disclose information about their victims—including the whereabouts of a murdered victim and the identities of child victims in the case of offenders who take or make indecent images—is always taken into account by the Parole Board when making decisions about their possible release, and will now be a statutory requirement.
I support Amendment 19 in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord German, and believe the effectiveness of the Bill will be proved only if we can assure victims that their concerns are a priority in the justice system. Victims cannot be an afterthought; there have been too many occasions in the past when painful interviews with the bereaved, still suffering terrible grief, are broadcast in which they say that no one had told them in advance that those who had done terrible things to their loved ones had been released.
The Victims Commissioner reported recently that victims are less satisfied than ever that their views are taken into consideration. Can the Government assure the House that victim involvement in Parole Board decisions will improve with the passing of this Bill? I hope that the amendment will therefore be accepted. I know that the Government will point to a future, wider root-and-branch review of the operation of the Parole Board as a way of increasing transparency, but they have an immediate opportunity to do so by accepting Amendment 19.
My Lords, this amendment, tabled by my noble friend Lady Barker, puts victims right at the centre of the parole functions. The amendment has two major functions: to ensure that victims are contacted, and to provide victims with information about the Parole Board’s hearing of the case of the prisoner’s parole. Much more needs to be done to support victims. The issue of strengthening the victims contact scheme as a whole is important and, while associated with the Bill, is beyond the scope of it. I look forward to the Minister telling us when his root-and-branch review of the Parole Board will take place. “In the fullness of time” was the response we got at Second Reading, and I think we ought to know when full time will be up.
However, there are matters in the Bill that relate to the Parole Board’s functions and to the work it has to do for victims. There are considerations that affect the way the board should engage with victims. First, cannot the system be modernised so that victims’ views can be taken by video link, rather than having to travel in person to the prison where the perpetrator is located? This process can in itself add to the anguish felt by victims who have struggled to come to terms with the grief they have suffered. Sentencing and conviction is just the start of justice for victims. The parole process can easily add to a victim’s pain, and it is essential that everything be done to minimise the trauma this can cause, amplified by the heinous crimes committed, which are the subject of the Bill.
The amendment requires that victims should be contacted as of right. Too often we have heard cases where victims have just not known what is going to happen, and suddenly they find that the perpetrator is released into the community, they have no idea what the conditions were, and they have simply to face up to the fright and misery of that happening. It has to be at their choice that they actually receive the information about the Parole Board’s operations; they have to be given the option to do that. That means we must have an opting out of receiving information: in other words, it is the duty of the Parole Board to give information to victims—to do everything it possibly can to give them that information—and it is the victims’ choice whether they receive that information. Of course, that means that, over time, we would expect some people to say, right at the beginning, “I do not want to hear any more; I do not want to have any more information”. But at this particular point, at the point of possible release into the community, there has to be that option, and contact has to be made as of right.
We know of too many examples of victims finding out the result of the parole process only from media reports, as the noble Baroness just said, from social media or, worst of all—can you imagine?—from reporters calling victims to ask for their comments on the release of the perpetrator. Thus far the service has adopted much more of an opting-in approach to receiving information than an opting-out approach, which I think is crucial in making sure that victims have their rights upheld. For example, I am sure Members will recall the case of Worboys being debated in your Lordships’ House last year, when this matter came to a very important head. Within the narrow scope of the Bill, which leads to only a relatively small number of cases being considered, I do not think this obligation on the Parole Board will place a large administrative burden on its workings. But these Parole Board cases are of great significance to victims, and victims have a right to know what is happening and to have their say should they desire to. They need a consistent infrastructure for exercising these rights. This amendment enables victims to opt out of knowing about and participating in the parole process, but the default position is that they will always be given that opportunity.
With modern technology, keeping in contact with victims is so much easier. Tracing victims if they change their address, telephone number or email will be much simpler and quicker. Governments have databases which can make it much easier to locate people whose contact details have been mislaid. There should be an obligation, therefore, on the Parole Board to maintain the contact details of victims, so that when this time comes, as in the Bill it will do, it is obliged to make sure that the victims understand and know their rights, and that they have a right not to hear anything and to opt out of the information if they so desire. That is what this important amendment would do: give rights to victims that are recorded as being consistent, and which are so important to people who are suffering such misery.
My Lords, all noble Lords who have spoken on the amendment have supported it with some passion. The noble Baroness, Lady Barker, who moved it, spoke forcefully about relatives’ right to hear about release hearings and about putting the onus on the Parole Board to inform victims’ families, rather than victims’ families having to use their own initiative to remain in contact with the Parole Board. As she rightly said, this is very important for families. There should be automatic membership of the victims contact scheme. People should not have to opt in, although they should, of course, have the option of opting out.
My noble friend Lady Healy had it absolutely right when she said that of course we understand that there is to be a wholesale review of all aspects of the Parole Board, but that here we have an opportunity right now to do something about this, something that has received cross-party support and is very much in the spirit of supporting victims through this often very protracted process. It is a difficult process, but we can do something about it right now.
In his summing up, the noble Lord, Lord German, made the same points about putting victims at the centre of the Parole Board’s functions. He alluded to the benefits of modern technology. I have to say, again with my magistrate’s hat on—although I do not speak for the magistracy in any way—that even with the best modern technology, it is sometimes quite difficult to locate people, particularly if they do not want to be located. However, that is not a reason for not putting the onus on the Parole Board, and I very much support the amendments.
My Lords, I thank noble Lords for their contributions to the debate on the amendment, and I thank the noble Baroness, Lady Barker, for her submissions on it. In the context of the Bill, we are dealing with particularly disturbing forms of crime and particularly disturbing consequences. However, we must have regard to all victims of crime, not just of these crimes, in determining the appropriate step to take in order properly to take account of their views, interests and concerns.
Processes are already in place, by virtue of the Parole Board rules, the victims’ code and the Domestic Violence, Crime and Victims Act 2004, that address the issues referred to in the amendment. Both the National Probation Service and the Parole Board communicate information to victims, and where a family member is affected by an offender’s action, they too, of course, will be victims and will be contacted. Where a victim wishes to receive information, this will be provided by their victim liaison officer. Victims can receive information regarding the date of a parole hearing and the outcome of a review. Indeed, they may request a summary of a Parole Board decision and can also provide a victim personal statement to the Parole Board to explain the impact of the crime upon them. They have the right to request that certain tailored licence conditions be applied.
Victims are also informed of the avenues for making a request for reconsideration of a decision. Such reconsideration will be carried out by the Secretary of State. Following a request for reconsideration, they will receive reasons why their request was or was not successful. Thereafter, a victim liaison officer will provide information regarding judicial review, if that is requested.
In recent times—I note the reference to the Worboys case—the National Probation Service has improved the way in which it communicates with victims, such as using email or telephone as opposed to letters, while being mindful of the victim’s preferred method of contact. We have also tightened processes to ensure that victims are informed of developments, such as being notified of the date of oral hearings, in a timely manner. We have expanded the criteria for victims who are eligible for contact under the National Probation Service Victim Contact Scheme. We are trialling a new process whereby all eligible victims are referred directly to probation to reduce the risk that they are not offered use of the victim contact scheme directly. Therefore, we have taken steps to improve the system. However, the Parole Board is an independent body and it requires a degree of flexibility in how it operates. To impose these statutory obligations on the Parole Board, and the Parole Board alone, would, I suggest, be going too far.
I hear what is said about the idea of an opt-out rather than an opt-in scheme for victims and what is said about the need to improve the involvement of victims, particularly those in the present category. I will be happy to discuss that at a meeting, as suggested by the noble Baroness, Lady Kennedy, before the next stage of the Bill. However, I also note that there is a proposal for a review of the Parole Board. I cannot give a precise date for that review but, again, I will be happy to take that up in discussions with the noble Baroness, Lady Kennedy. At this stage, however, I invite the noble Baroness, Lady Barker, to withdraw the amendment.
I thank all noble Lords who have taken part in the debate on this amendment. It would have been easy to dismiss this as a minor procedural matter, but I have long held the view that when people have frustrations about the criminal justice system or indeed the workings of the Home Office, as many of those arise from the way in which the system works and the procedures that are adopted as from the decisions of substance that are made. Our criminal justice system can be extremely difficult to work with at a basic administrative level.
I particularly welcomed the support of the noble Baroness, Lady Kennedy of Cradley, for our proposal that there should be an opt-out rather than an opt-in scheme. It is high time that we moved to that, and I do not think that it would necessarily put any undue obligations or administrative burdens on the probation service or the Parole Board. My noble friend Lord German spoke about the increased use of technology, which will be life in the new world for everybody. I think that it can be done in ways that minimise trauma to victims, maximise inclusion and make life administratively easier for those who are responsible for implementing it.
I am glad that the noble Lord, Lord Ponsonby, recognised that there is cross-party support. I, too, think that it is a matter that could be looked at in the near future. I do not think that it has to wait for the full, wider review of the Parole Board. I very much welcome the Minister’s offer of a meeting. I hope that he might consider including in that some of the victims’ representatives, for whom this is not theoretical but a crucially important matter in their lives. We all wish to see this Bill make the statute book. Therefore, at this point, as the Minister predicted, I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Clause 3 agreed.
My Lords, I am getting a little background disturbance. I am not sure whether it is intended to get my attention, but I shall proceed on the basis that it is not. That concludes the Virtual Committee’s proceedings on the Bill. The Virtual Proceeding will now adjourn until a convenient point after 6.30 pm.
Virtual Proceeding suspended.
My Lords, this Bill will stipulate in statute an obligation on the Parole Board to ensure that the non-disclosure of information is always considered when making a release assessment. The Bill will put established practice on a statutory footing and respond directly to real-life issues that have caused immense pain to the families of victims of serious crimes.
The Bill, sometimes referred to as “Helen’s Law”, is a result of the work of Helen’s mother, Marie McCourt, who has campaigned tirelessly for this change. I take the opportunity to pay tribute to Mrs McCourt’s resolve. It is in large part thanks to her that we have reached this point.
Helen McCourt was a 22 year-old insurance clerk from the village of Billinge, near St Helens in Merseyside. On the evening of 9 February 1988, Helen disappeared while on her way home from work. The following year, Ian Simms was convicted of Helen’s murder and ordered to serve a minimum of 16 years in prison. Ian Simms has since been released but has never revealed where Helen’s body is and, despite extensive searches, her remains have never been found. This has compounded the unimaginable suffering of the McCourt family.
We will all appreciate the closure and comfort that can come from laying a loved one to rest. The McCourt family, and others like them, have been wilfully and cruelly denied this comfort. Mrs McCourt has campaigned for a change in the law to represent this, to acknowledge the added distress this causes for the families of victims, and there is wide public support for such a change.
I would like to take a moment to reflect on another case which has shaped the development of the Bill. In 2009, Vanessa George was convicted for multiple counts of sexual abuse against children at the Plymouth nursery where she worked. She did not stop at the abuse of the children but photographed these horrendous acts in order to share them with other depraved individuals. Her abuse of the trust placed in her by the families of the children she was meant to care for and protect is truly shocking.
The pain felt by the victims and their families has been compounded by the fact that the children she photographed cannot be identified from the images she produced, and she has hitherto refused to disclose their identities. Many families who placed their trust in Vanessa George do not know, and may never know, if their children fell victim to her cruelty. She was released by the Parole Board after serving 10 years in prison.
When considering the release of an offender like Vanessa George or Ian Simms, the Parole Board must always take into account this withholding of such significant information. That is why we are legislating, through this Bill, to directly address this current gap, and to seek to bring some small solace to victims and families.
Clause 1 will amend the release provisions that apply to life sentences for murder and manslaughter, and sentences of imprisonment for public protection for manslaughter and the offence of taking or making indecent images of children. This places a statutory obligation upon the Parole Board to consider a non-disclosure of information about a victim’s remains or the identity of a victim in an indecent image when making a public protection decision, being a decision to release, about such a prisoner.
Clause 2 of the Bill effectively replicates what Clause 1 achieves but in relation to the release provisions that apply to an extended determinate sentence which has been imposed for manslaughter or the offence of taking or making indecent photographs of children. Functioning in the same way as Clause 1, it will place a statutory obligation on the Parole Board to consider the non-disclosure of information about the location of a victim’s remains or the identities of a child or children featured in indecent images when making a public protection decision, including a decision to release.
In order for the Bill to apply, the Parole Board must not know the location of a victim’s remains or the identity of a victim in an indecent image but must believe that the prisoner has information about this that they have not disclosed to the board. This is the essence of the prisoner’s non-disclosure, and it is this that must be taken into account by the board when assessing whether a prisoner can safely be released on licence.
Furthermore, the Parole Board must particularly take account of what, in its view, are the reasons for this non-disclosure. This subjective approach will enable the board to differentiate between circumstances such as when, for example, the non-disclosure is due to a prisoner’s mental illness, and cases when a prisoner makes a deliberate decision not to say where a victim’s remains are located.
Subjectivity is fundamental to the proper functioning of the Bill. It is for the Parole Board, as an independent, court-like body, to decide what bearing such information has on the risk that a prisoner may present and whether that risk can be managed safely in the community. The Bill reflects the established practice of the Parole Board but goes a step further and puts a legal duty on the board to take the non-disclosure into account.
While, as I have set out, the measures in this Bill may seem relatively small or technical, I cannot stress enough the importance of this Bill and the support it has from victims and families. The crimes of the likes of Ian Simms and Vanessa George are harrowing, and families affected by these crimes deserve the peace of some element of closure, whether that is the opportunity to lay a loved one to rest, or the certainty of whether or not they were abused. This Bill offers families and victims a chance to achieve that.
I hope that the “Helen’s Law” Bill will attract support from all sides of the House and enter into the statute book as soon as possible. I beg to move.
My Lords, I add my voice to the tributes paid to Marie McCourt. Her campaign to secure this legislation was formidable and supported by her local Member of Parliament, my honourable friend the Member for St Helens North, whose 10-minute rule Bill tabled in support of Marie’s campaign back in 2016 informed the legislation we have before us today.
The Bill has been a long time coming—in the other place it was noted that it has taken over three years, two general elections and two Prime Ministers for the Government to offer their own variation of Helen’s law—but thanks to the campaigners’ persistence and the Government’s constructive approach to this legislation, the Bill is now before us. It rightly has an enormous amount of cross-party support.
The first part of the Bill, introducing a new statutory obligation on the Parole Board to consider the non-disclosure of information about a victim’s remains when making a public protection decision, is a welcome step forward. It is not a “no body, no parole” Bill, so it is not everything the campaigners wanted, but it sends a clear message to Parole Board panels that the Government’s view is that a refusal to give information that can ease a relative’s pain, such as non-disclosure of remains, should be a significant factor in their decision-making.
In taking this legislation forward in practice, will guidance be issued to Parole Board panels on this new duty? For this legislation to work, it is vital that Parole Board panels view this new duty as a critical part of the eligibility criteria and not as a peripheral addition. How will the Government ensure that this happens? Even though it is not a “no body, no parole” Bill, that is the aim of this legislation, so will the impact of the legislation be subject to its own review?
I move briefly now to the second case that has shaped the Bill and to which the Minister referred: the horrific crimes of Vanessa George, who was convicted of multiple counts of sexual abuse against children at the Plymouth nursery where she worked. I pay tribute to my honourable friend the Member of Parliament for Plymouth, Sutton and Devonport, who has spoken out on behalf of the distressed parents of George’s child victims. To protect their children, the parents rightly wanted to stay private, so the support of their local MP has been critical, especially as he has ensured that this Bill includes a statutory obligation on the Parole Board to consider the non-disclosure of information about the identity of a child or children featured in such images.
It is tragic that this legislation is not in place in time to deliver for the victims in the George case. She has refused to disclose to the authorities the identities of the children she photographed, but she has been released, so already distressed parents not knowing whether their children were abused will continue to live in fear, pain and concern for their children. At this point, we must acknowledge that for Marie McCourt, too, the timing of this Bill is heartbreaking, as Helen’s murderer has been released, as the Minister said, without providing information on her whereabouts.
It would be remiss not to mention in this Second Reading that much more needs to be done to support victims in the parole process. Can the Government give assurances that the needs and experiences of the victims will be put at the heart of the root and branch review of the parole system which the Government have promised?
The way in which victims give evidence to the Parole Board needs to be modernised. It is daunting for a victim or their family member to travel, sometimes hundreds of miles, to give evidence in the prison holding the abuser or murderer in question. Making victims go through the necessary security to read out their statement seems an undesirable way to treat them. Can the use of video conferencing from a local court be adopted as standard practice for Parole Board panels?
There is also a lack of support and help for victims in compiling and presenting their evidence to Parole Board panels, which should be addressed. Support and clear advice in plain English is particularly important if you are a young person having to give evidence.
Sadly, many of the parents involved in the George case found out about her release on Facebook or via the local paper. I am sure every effort was made to contact the parents in this instance, but in general the change of contact details over time and the opt-in approach of the victim contact scheme cause issues. Again, technology should be developed to modernise this scheme so that victims can opt in and opt out at any time and update their contact details easily. The Government should also consider changing the law so that victims are automatically included in the scheme unless they opt out. Will the Government consider that option?
Finally, measures to increase the transparency of how decisions are made and how the Parole Board works are to be welcomed. In this area, simple changes can take place without the need to wait for a review or legislation. For example, victims should be given the high-level summaries of decisions without having to apply for them.
Today’s Bill is a welcome and positive step in the right direction, but we have to do more to support victims in the parole process, and put mechanisms in place to make sure that the aim of the Bill becomes a reality and gives victims and their families the information they rightly seek.
My Lords, it is a privilege to speak in support of a Bill that is perhaps largely technical but one that has been shaped by and responds to the most profound and challenging of human experiences. I commend the Government for their manifesto commitment to the Bill and for progressing it to this stage, despite the circumstances in which we find ourselves. Like the noble Baroness, Lady Kennedy, I pay tribute to honourable Members in the other place who have championed its cause over several years, in particular the Member for St Helens North, Conor McGinn, and the Member for Plymouth, Sutton and Devonport, Luke Pollard. Despite elections, changes of leadership, Brexit, Dissolutions and Prorogations, they have not allowed this issue to be sidelined.
I join in the tributes, which I know will continue, to Marie McCourt, whose tireless campaigning not only attracted nationwide support, but, as importantly, helped other families in similar situations to her own to realise that they were not alone. Her loss was unfathomable; her courage, tenacity and resolve over many decades is remarkable.
The Bill will be vital in helping bereaved families come to terms with their grief and to deal with what for most people will, mercifully, remain unimaginable. It will also be important in restating the Government’s commitment to the safety of our communities and their willingness to take steps, as and when they are necessary, to evolve institutions whose core function is to protect society.
The Bill enshrines in law what is already the practice in parole boards, which is to fully consider the failure by the prisoner to disclose information about the victim’s remains, or the identity of child victims of indecent imagery. Given this, on the surface it might appear to change little. However, it will make decisions more consistent and fair across the system. Importantly, it responds to the pleas of victims’ families, demonstrating that they have been heard. It means that the Parole Board no longer has discretion to disregard non-disclosure in making its decisions—a distinct change, and one that Parliament alone will have the power to reverse.
The Bill can also be seen as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system. The review of Parole Board Rules, presented to Parliament in February 2019, made welcome improvements, including enhanced engagement and communication with victims, the new reconsideration mechanism, and standard practice documents to ensure a more robust, transparent and consistent approach to decision-making.
The review also recognised the importance of ensuring a fair hearing for prisoners with mental health needs and learning disabilities, and noted the need for explicit provision in relation to
“the procedure that should be followed in cases where the prisoner is found to lack mental capacity to participate in the parole process.”
I would welcome reassurance from the Minister that he is content that the need for this explicit provision for prisoners lacking mental capacity is adequately addressed in new Section 28A(2), which states:
“When making the public protection decision about the life prisoner, the Parole Board must take into account … the prisoner’s non-disclosure; and … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”
At Second Reading in the other place, the Lord Chancellor and Secretary of State for Justice said:
“This subjective approach will allow the board to differentiate between circumstances in which, for example, the non-disclosure is due to a prisoner’s mental illness.”—[Official Report, Commons, 11/2/20; col. 747.]
Is the Minister fully confident that this provides adequate protection for prisoners with mental health issues and effectively balances the imperative for justice with respect for human rights? I would also be grateful if, in winding up, he could give some indication of the timetable for the tailored review of the Parole Board, and for the root-and-branch review promised in the manifesto and reiterated at Second Reading in the other place by the Parliamentary Under-Secretary of State for Justice.
Amidst a crisis such as the one we currently face, it would be easy to put to one side numerous other pressing problems that afflict society. This makes it doubly commendable that the Government have moved forward with the Bill, fulfilling a manifesto promise and, more importantly, demonstrating a strong commitment to victims of crime and their families. It is a reminder that, while Covid-19 and the suffering it is causing is front of mind in many of our deliberations, other sorrows and tragedies continue to play out in communities, families and the lives of individuals. The Bill will never take away their loss but, in putting the support of victims and their needs at the centre of the justice system, it may help grieving families to achieve some kind of closure and finally to lay loved ones to rest.
My Lords, I have read the debates on the Bill in the other place, and I can well understand the alacrity with which it was approved. I can also understand the sense of outrage and distress felt by those close to the victims of killers, be they convicted of murder or manslaughter, when they are denied knowledge of where their loved ones have been abandoned by the criminal. To be denied a funeral because the person responsible for the death will not tell the relevant authorities where the remains are unquestionably adds to the distress and grief of the family.
We know of the cases which have been the catalyst for the Bill. There will be, I have no doubt, examples of the heinous behaviour that predated the Moors murders in the 1960s. More recent cases have been cited and in all of them, the simple recitation of the killer’s name is enough to reawaken the revulsion and hideous sense of loss that these foul people have aggravated by refusing to disclose the whereabouts of their victim’s body. For the parents of children who may have been sexually abused, the horror they have to contend with in not knowing whether the convicted sex offender abused their child is only to some miniscule amount mitigated by their child being alive and with them at home. Imagine the fear these parents must harbour that later, in adolescence or adulthood, their child will be traumatised by remembering or coming to realise what happened either to them or their classmates many years before.
The Bill is designed to mark in public policy the revulsion that right-thinking members of society feel for these serious offenders who, not content with killing or abusing their victims, add to the pain and suffering of their victims’ families and friends by keeping secret information which, if they had a scintilla of remorse or empathy, they would give up to the police. No doubt there will be some killers and sex offenders who take a perverse pleasure in prolonging the agony caused by their crimes by refusing to say where they have abandoned the body of their victim, or withholding the identities of those whom they have abused.
The Bill, as has been explained by my noble and learned friend and by the noble Baronesses, Lady Kennedy and Lady Bull, concerns the obligations of the Parole Board when it considers whether an offender merits release from prison. It places a statutory duty on the board to consider circumstances where the offender does not disclose the sort of information I have referred to as part of its assessment of whether they should be released from custody. The board is already subject to non-statutory guidance to the same effect so the Bill, when enacted, will promote that to a statutory duty. Although I understand the welcome the Bill was given in the other place and congratulate the Members of Parliament who have campaigned on behalf of victims and their families to bring it into law, I am not sure that the approach adopted by the Bill goes far enough.
The Parole Board has always had the power to consider the release date of long-term prisoners and, although its decisions are in certain circumstances amenable to judicial review, its procedures are essentially held in private. The public and the media do not attend its hearings and its reasoned decisions are not, as a rule, published. Decisions about the liberty of the subject, especially concerning the future of offenders imprisoned for very serious violent or sex crimes, should be made in public, or at least the reasons for the Parole Board’s decisions, be it to release or not, should be available to the public. I can see that there may be certain facts or details about the victim and the case as a whole that may need to be kept confidential but, by and large, the default position should be for open justice.
I have a further concern about what is proposed by the Bill. I am not convinced that it is right to revise this aspect of the criminal justice system by guidance, even when that guidance is imposed through the medium of a statutory duty. In my judgment, if a prisoner is to be faced with a longer period in custody, it should be through a statutory arrangement, but that arrangement should not be administrative. Rather than telling the Parole Board that it must take into account that an offender has not provided certain details about their offences, it should be a discrete criminal offence, subject to appropriate defences, for a convicted defendant not to inform the police or other proper authority where or how a victim’s remains were disposed of.
The trial of the defendant for this additional offence would take place in open court before the same judge who presided over the murder, manslaughter or sex offence trial or, if the offender had pleaded guilty to the killing but none the less refused to say what had been done with the body, before the same judge sentencing for the original offence. The trial of the offence of non-disclosure could take place immediately after the finding or plea of guilty of the killing or sex crime, or later, depending on the facts of the case. There might, for example, need to be a delay while a co-defendant who had pleaded not guilty to the murder, manslaughter or sex abuse, as the case may be, was tried before dealing with the offence of non-disclosure.
The trial of the allegation of non-disclosure should not just be before the same judge who tried the murder or sex abuse case; the judge should try it without a jury. That would be quicker, of course, but would also avoid any deliberate or unwitting bias against the convicted killer or sex offender in the mind of the jury which had only just reached a guilty verdict, or of a new jury which will know of the first and highly prejudicial conviction. It would also enable the judge to be sure that the facts proved to his satisfaction in the first trial could, where relevant to the issue of non-disclosure, be available without re-proof in the non-disclosure trial. There would be a reasoned and dispassionate judgment which explained what the judge had found and why the facts applied to the relevant law led to the verdict of guilty or not guilty.
If there were a verdict of guilty, the judge could then first sentence the defendant for the original offence and, secondly, impose a consecutive sentence for the crime of non-disclosure. If sentenced to life imprisonment for murder, the defendant would be told that the minimum tariff for the murder would be, for example, 25 years and that the determinate sentence for non-disclosure was five years, to run consecutively from the end of the tariff, making a total of 30 years before release on licence could be considered. If the offence merited an extended determinate sentence, the judge would add the two sentences together, making sure that the overall number of years was neither unduly lenient nor manifestly excessive and that the two sentences would run consecutively and not concurrently.
There is no doubt a good deal of procedural and legal detail that will need to be thought through, but I suggest that the scheme I have advanced, if only in outline, better fits the purpose intended but not achieved by the Bill before us. I ask the Government to see whether what I have proposed might not better deal with the very real concerns of those who have so enthusiastically and rightly supported this Bill.
My Lords, I first welcome my noble friend Lord Ponsonby to the Opposition Front Bench and make it clear that I fully support this Bill and its aims. I pay tribute to the campaigners, including, as we have heard, the McCourt family, led by Marie McCourt. They have sought this change to the legislation and, along with the families of the victims of Vanessa George, have enabled this to happen. It is thanks to them that the Bill is here. Hopefully, when it soon becomes an Act of Parliament, it will be able to give some comfort to the families of victims in future.
I also pay tribute, as have other noble Lords have, to my honourable friends in the other place—the Members for Plymouth Sutton and Devonport and for St Helens North—for their work campaigning with the families of victims, which has helped bring this legislation forward today. I also pay tribute to the Government for bringing the legislation forward, for putting it in their manifesto and following that through —we are all very pleased it is here. The Bill is fairly short, of course. It has two clauses that amend the Crime (Sentences) Act 1997 and address the release of prisoners under the Criminal Justice Act 2003. The noble and learned Lord, Lord Garnier, made a number of points. He is a respected lawyer and I am sure that the noble and learned Lord, Lord Keen, will respond to those points. These detailed questions of law need to be addressed and I hope we will get a response to them.
In respect of the crime of murder, as we have heard, the Bill brings into force provisions which have become known as Helen’s law. The noble and learned Lord, Lord Keen, referred to that in his opening remarks. In responding to the debate, will he set out in more detail for the House how this process will work, compared to the guidance given to the Parole Board previously, and this new statutory obligation to consider the non-disclosure about a victim’s remains? Would the Parole Board always have considered this question—I think it probably would—or might it not have considered the non-disclosure of victim’s remains because it had the discretion not to consider that matter?
Will the noble and learned Lord also address the situation where someone is convicted of the crime of manslaughter but is given a determinate sentence of some years in prison? Does he believe that the issue would not in effect arise, in that someone who was convicted of the crime of manslaughter and had refused to disclose what happened to the body would expect to receive a life sentence from the court, as opposed to an ordinary determinate sentence or an extended determinate sentence, which are, of course, covered in the Bill? For anybody given an ordinary determinate sentence, one would assume that the victim’s remains had been recovered, due to the nature of the crime they had committed attracting that type of sentence.
Will the noble and learned Lord, Lord Keen, address the fact that the Bill requires the Parole Board to consider the issue but does not prevent it deciding that someone is still suitable for release? In such a case, will he confirm that the powers of the Secretary of State in these circumstances have not changed but will stay as they are at present? Will he also set out where we are in respect of people convicted of murder but who do not admit their guilt and, in some cases, protest their innocence? What happens to them? Are they, in effect, in denial and not allowed to be considered? It would be interesting to find out.
My noble friend Lady Kennedy of Cradley made an important point about contacting victims and their families to seek their views before somebody is considered for release. Again, I hope the noble and learned Lord can address that point. It is very important because people move away over what can be a period of many years and contact with them can be lost. The possibility of their finding out through the media, including social media, is not something we would want to see in the future.
The Bill is important in helping the families of victims come to terms with the hurt and the grief. In that sense, the Government should be congratulated on bringing the legislation forward. On the other side, there is the issue of the mental health of some prisoners, and that of human rights, which must be a concern for all of us at all times. These are of course rights that murderers deny their victims and their victims’ families, but human rights are still important. Perhaps the noble and learned Lord can address that in his remarks. I look forward to his response in due course.
My Lords, I remind the House of my interest in the register as founder and chairman of Crime Concern, which gave birth to Victim Support. All of us agree that the Bill is much needed and timely. It may be simple in the paragraphs contained in it, but it is profoundly essential. It is a dignity measure for victims—a measure that strips bare those vindictive and harsh offenders who wish to hide behind their crimes and the mask that an illusion will eventually pass over our concerns. These vulgar and violent crimes cannot and should not be forgotten.
I am conscious that the seriousness and importance of this legislation reflects a great effort on the part of the Ministry of Justice and the Government to tighten the law. We cannot disagree, given the cases involved that have set the boundaries for the Bill, that it is vital and necessary. When the Minister comes to wrap up the debate, will he indicate whether the Government have an interest in bringing forward any further legislation to tighten up other aspects of the law on the release of prisoners? Whether they are appropriate or not, there may be further dimensions for consideration by the Parole Board, or even by those with wider sentencing or probation powers.
Yesterday, we heard in the other place that just 33 prisoners have been released out of the proposed 4,000 in the decision of the Ministry of Justice on 4 April. This would imply that the release procedure has gone wrong somewhere. We know that a few offenders were released and then recalled. It also suggests that the promise of release for good reason, as agreed by many in this House and the other place, as well as by public campaigners, means that sometimes too many people are allowed to languish for too long in our system. That is itself an element of injustice. How will the Government fulfil their responsibility, set out on 4 April, to release prisoners who pose no harm to wider society, in particular as they have done not only for pregnant women prisoners but for those with disabilities, of great age or who are suffering from other illnesses? Can the Minister comment on that aspect or, if it is not in his brief, will he write to the House? This is a matter of dignity. While the Bill is about dignity for victims, the entire criminal justice system needs to have that element of dignity about it.
My noble friend Lord Hogan-Howe, who is not in his place today, and I have been looking at a number of cases involving miscarriages of justice relating to offenders that are of serious concern. We are here to pass a vital Bill because it will place further duties on the Parole Board and on the structure of how considerations of parole and possible release are brought forward. What consideration is the Ministry of Justice now giving to beefing up the need for enhanced legal aid to support those in need of better consideration of their cases? What thought is being given to the Criminal Cases Review Commission, which seems to have been consistently weakened over decades so that its ability to bring forward cases of genuine need—to see that justice is done—is now much reduced? In particular, perhaps I may highlight what seems to be the number of IPP prisoners who are languishing while being held in our prison system, given that the current number is around 2,400. They are serving indeterminate sentences with no notice of release.
I am raising these issues because the Bill is about justice for victims but, at the same time, we should not make others the victims of injustice by allowing miscarriages of justice to be disregarded. I hope, as would we all, that as the Bill passes on to the statute book—as it should, so that families, in particular the McCourt family, get some sense of peace at long last because the right thing has been done—we do not allow the wrong thing to continue simply because it does not make for a good headline. I ask instead that justice is comprehensive and that the Ministry of Justice takes account of all those affected by the criminal justice system.
My Lords, I would not imagine that there is anyone in this House who does not support this Bill; we extend our sympathy to those who sadly gave rise to it and our congratulations to those in the other House who have brought it this far. I fully support the Bill, but I have some questions, which I will address to the Minister and the House.
The briefing note says that the Bill puts into statute already established guidance for the Parole Board. The delegated powers memorandum says that where
“the offender has not disclosed the location of the victim’s remains, the Parole Board must take that into account in determining that prisoner’s suitability for release.”
I do not think that anyone could disagree with that, but it leads to the question: why is this necessary? Why do we need to guide the Parole Board—unless we believe that maybe it has lost its way?
If we are going to have greater transparency for the Parole Board, which I think is a good thing, we also need to know—from the Minister, I hope—when the review that was indicated in the Conservative Party manifesto is expected to report and to lead to some changes. It could be argued that part of the problem is, first, the personnel on the Parole Board, and, secondly, the omerta that surrounds much of its proceedings. Both of these things I have no answer for, but they need to be looked at.
I note that the Bill does not extend to Scotland and Northern Ireland. Is it envisaged that within the devolved Administrations settlement it will be discussed with them, with a view to then bringing matters into line?
The provisions for reviewing convictions also probably need to be looked at. As has been mentioned, some people in prison maintain very rigidly that they are innocent. They may be guilty but have convinced themselves that they are innocent, or they may think that they have been wronged. I am not against a tough system on release, but there has to be an adequate system for reviewing the convictions of those who maintain their innocence—at least the evidence should be looked at again. It is in no way a comparable series of offences, but one thinks of Guildford and Birmingham and the way in which miscarriages of justice were carried through in the past. It is possible, in a very febrile atmosphere, that a conviction might be upheld; the Parole Board may meet in secret but trials are conducted in public, and it is possible for people to be carried away.
The noble and learned Lord, Lord Garnier, mentioned wilful non-disclosure. There is a certain amount of wilful non-disclosure, but we also need to be careful of what I think of as “mind-blanking”: in other words, the psychiatric condition where people just cannot face the fact that they have done something, or their mind goes completely blank. There is a condition where you just forget everything that has happened.
I have often thought that Ian Brady, who led the police and the judicial authorities a merry dance for many years over the location of the Moors murders bodies, had probably forgotten where they were. But it was an excuse for him to get a day out from time to time, and maybe he realised that he was never going to be released. I have never been convinced that he actually knew where the bodies were. I may well be wrong, and I am certainly not suggesting that he should ever have been released, but it is possible for people to completely blank out things in their lives.
I also have a slight reservation about the child abuse provisions. Is it possible that people could name the wrong children? I think it is, particularly if the crime was some time ago. The offender is presented with a list of children who may have been in that nursery. He then thinks, “Well, if I name some, it will help me to get out, but I can’t really remember whether it was X or Y. I think it was X, so I’ll name X”—but if they are wrong, that also has a very severe impact on the child who is wrongly named. I do not have the solution, but I think the question needs looking at.
My final point is that there is a need for the Parole Board to see some psychiatric evidence and to have some independent people before it. I am certainly not advocating a legal aid bonanza of prisoners being able to hire QCs and have full hearings, but I think provision should be made for the Parole Board to call independent expert witnesses, particularly in areas such as mind blanking and the like, to advise it. We probably need also to look at the membership of the Parole Board and the degree of secrecy within which it is able to work.
Can the Minister say when it is envisaged that this law will come into force? I note that the decision is left to the department. Does he have any idea when the department will aim to bring it in?
My Lords, we all share the distress of the victims of the appalling crimes which have given rise to this Bill, and I associate myself with all the remarks that have been made in that regard. However, the key speech of this debate was made by the noble and learned Lord, Lord Garnier, about how much the approach taken in the Bill changes things in practice. As he rightly said, all the Bill does is impose a statutory duty in place of the current requirement on the Parole Board to consider these matters in any event.
That being the case, will the Advocate-General tell us what difference in practice the Bill will make to the operation of the system? The noble and learned Lord, Lord Garnier, made the point very well that, given the public importance of these issues and the huge emotive and personal importance to the relatives of the victims, having a process in open court and creating a new statutory offence seems a more logical and justifiable way forward.
Perhaps I could ask a related question. Since it appears that this Bill does not change the way the Parole Board operates, might it be possible for relatives of the victims in question to address the Parole Board? Given that in the Bill Parliament is seeking to highlight one particular factor among others which the Parole Board must consider when deciding on release and the significance of that factor, might victims be allowed to address the Parole Board directly? Can the Minister say whether that was considered by the Government—and, if it was considered, why it has not been allowed?
My Lords, I wholeheartedly support this important Bill and pay tribute to those who have worked so hard to bring it to Parliament. Justice delayed is justice denied. Since Helen McCourt was tragically murdered in 1988, her mother Marie has been searching for justice and peace, and while Helen’s law will at least help bring justice to others, this Bill must be only the start of putting victims’ views at the heart of the criminal justice system.
This Bill is a critical step in the right direction, yet if we stop here our criminal justice system will continue to let down the victims of crime. I believe passionately in the rehabilitation of offenders and declare my interest as a member of the development committee of the superb charity Clean Break. But victims of serious crime should always be on our list of priorities. I welcome the fact that the Bill puts victims first by placing a statutory duty on the Parole Board to ensure that there is proper consideration of whether there has been a failure to disclose the location of the victim’s remains in the case of murder or the identity of a child when it comes to taking or making indecent images of children. This is a positive and welcome move and it is hard to understand how any convicted criminal can claim to be rehabilitated if they continue to withhold such information. Failure to do so shows a lack of understanding, remorse and compassion. It shows that they are not willing to do what it takes to redress wrongs and accept responsibility for what they have done.
However, we should also consider what else we can do to support victims. Justice is not a single moment in time; it is a process of rehabilitation that victims too have to go through before they can come to terms with what has happened to them and take back control of their lives. My concern is that this Bill will not fundamentally change current practice and that families in such cases will continue to have to rely on the discretion of the Parole Board. There are too many concerns about the lack of transparency and accountability in the Parole Board’s processes, and some serious question marks hang over its duties in relation to responsibilities towards victims.
Never has there been a more courageous, compassionate and passionate advocate for victims’ rights than my noble friend—I am very proud to call her a friend—Lady Newlove. Not only did she and her young family have to come to terms with the most base and horrific of crimes, but she has lent her voice to support others. However, even she has been let down by the system. Unbeknown to her and her family, the perpetrators of the crime that left her a widow and her daughters without their father have variously been recommended for parole, early release and a place in open prisons with home visitation privileges at the weekend. Why was she not told? Does she not have an inalienable right to feel safe and secure?
Noble Lords might be aware of the victim contact scheme. This is supposed to allow for a victim whose offender is sentenced to 12 months or more to be kept informed of the progression of the sentence and any associated parole. However, victims have told of being contacted by the scheme only to be informed of Parole Board decisions that have already been made. One victim even discovered a decision on Twitter before being informed by the scheme.
Let us take the case of John Worboys, the black cab rapist, recommended for early release from his life sentence by the Parole Board. More victims of Worboys’s heinous crimes had to bravely come forward for the Parole Board to reverse its decision. Why were the victims not part of the Parole Board hearing in the first place, or at least fully aware of it? Instead, they were forced to come forward by fear itself to stop what was nothing less than the undermining of the justice that they thought had already been done.
That tells us that, for the victims of crime, sentencing and conviction are just the beginning of justice. If sentences are altered or shortened, or the terms and conditions of release are changed, victims have a right to know and a right to their say. It is not okay that my noble friend Lady Newlove and her family were not told that the subjects of their own personal nightmares could be walking the streets of their home town without their knowledge.
My noble friend has called for a victims’ advocate unit to level the playing field. Her point is that, once a victim’s impact statement has been read, victims cease to exist as the process of justice continues to wind its course. Victims should be given training and legal aid so that they too can continue to hold the courts and the Parole Board to account, continue to advocate for their needs as victims, and get access to any information they need about the terms of parole or release or the location of offenders.
Alongside a victims’ advocate unit, we also need comprehensive reform of the Parole Board. This is the same Parole Board that released John Worboys, even though he remained a danger to society, released Garry Newlove’s killers without telling his family when and where, and released Helen’s killer, even though he had it in his gift to bring peace to the victim’s family but declined to do so. It is time to embed the rights of victims alongside those of offenders, recognising that the Parole Board’s decisions impact both.
Everyone deserves a second chance, and so too do victims of crime—a chance to rebuild their shattered lives, to restore confidence, self-esteem and self-worth, and to try again to live the life that was taken away from them. Justice needs to focus far more on the rights, wishes and needs of the victims. For that reason, and notwithstanding some serious concerns about the Parole Board’s decisions, I support and welcome the Bill and commend it to the House.
My Lords, I am regularly nervous when legislation on criminal justice emerges from the Home Office via politicians. Much of it over the last 20 years that I have participated in through debate and discussion, and have voted on, has struggled to pass the test: does it do what it is meant to do? I will not repeat the very eloquent argument put by the noble and learned Lord, Lord Garnier, but the question of whether something that goes in the right direction and is done in the right spirit does what it is meant to do is fundamental; otherwise, in several years’ time we will find that a piece of legislation is not fit for purpose, and has no purpose other than to placate a general and valid viewpoint and a demand from individuals and society.
I hope that the Minister can persuade me, and other noble Lords, that this Bill will do what it says on the tin. The noble Lord, Lord Balfe, raised the question of Ian Brady. However, Brady was in Broadmoor: would this legislation have applied to him? That case scarred the whole of the north of England. In some ways, it still does to this day, particularly regarding Keith Bennett, so horrifically unfound and his mother unable to be reunited with her son before her death. The case captured the anger of whole segments of society that the law was not doing what it should. Will those determined by the law to be unfit for prison and put in special hospitals —I live just a few miles from another one, Rampton, which has had equally notorious cases—be covered?
The question of whether the law goes far enough in the right direction is also very important. I have had the honour—but not the pleasure—of being involved in detail with the independent child abuse inquiry. I have been a witness and will be again in the near future. I spent four weeks representing people in the Nottinghamshire strand of the inquiry. I sat, both inside and outside sessions, with those who had survived the most horrific abuse, often as small children. I tried to work through what it was that they actually wanted. Of course they wanted a conviction, if they could get one, but what else were they after? What was the key thing, above all else? I was able to dissect the cases of the 30 individuals I was representing. We had some successes: one case got reopened and someone got 19 years in prison; we had a celebratory party to see him off. Criminal justice and the sanction of prison was important, but at the heart of what those victims of child abuse wanted was the truth. The conclusion I drew was that the fundamental motive and critical thing to look for is power relations. Is the law sufficiently well framed in these cases? I would accept an argument from the Minister that currently it is not.
How do we deal with the misuse of power relations? In the Brady case, and in others that have been cited, it seems clear that the misuse and retention of power, by refusing to give information that victims require, is part of the criminality involved. When it comes to the images of child abuse that have led to a rather modest inclusion in the Bill, again, the fundamental question that has to be asked every time is: what is the power relation—the misuse of power? It seems to me that this opens up a healthy area for consideration, whether through amendments to this Bill or other legislation. Be it the murderer, the rapist or the child abuser, of whatever kind, misuse of power is the fundamental question, which the current law does not adequately address. It addresses acts, which can be properly adjudicated on, but the concept of power and how it is misused is much more difficult—as is, therefore, the question of silence and the refusal to give information. I hope that the Minister will give some consideration as to whether this Bill can be extended.
My Lords, I live in Bedfordshire and represented Northampton for the best part of a quarter of a century. The prison serving that community is Bedford prison, which has difficulties made worse by the overcrowding that it has always had. Ironically, the situation we find ourselves in today with coronavirus has brought this issue into my focus; it is a heavily overcrowded prison. The argument and discussion that took place during the short debate last Thursday, in which I took part, concerned which prisoners should be put on temporary release and how many. The question was debated fully and, I think, successfully.
This Bill deals with the same subject of prisons. I have read it. A comment was made that it is only a short Bill, with three clauses. I remember chairing the Maastricht Bill, which was one clause longer at four clauses. It took 25 days to reach Committee stage, so the length of a Bill is not necessarily a determinant of its importance. I have a few questions, as a layman and someone who takes a public interest. The first question, which arises from the debate last Thursday, was raised by my noble friend Lord Balfe behind me. I note that the Bill applies only to England and Wales. Is there any difference between England, Wales, Scotland and Northern Ireland in what takes place currently, and is it the intention that those other two important parts of the United Kingdom are to follow suit?
Secondly, I have listened in particular to my noble and learned friend Lord Garnier and it is not entirely clear to me why the Government have so far rejected the concept of “no body, no release”. Is it based on the evidence that has arisen from Australia, or on mental health concerns in that area? I hope that the Minister who spoke in the other place—I have read the whole of that debate—was correct to say that
“there is a danger that if we proceed too far along that path”
—of no body, no release—
“we could inadvertently create an artificial incentive for people to mislead the authorities and to feign co-operation or remorse.”—[Official Report, Commons, 11/2/20; col. 747.]
I would have thought that part of the skill of life for those who work in interrogation is to pull out an answer from whoever they are interrogating. However, the Minister may be right; personally, I have my doubts, but I hope he is correct.
My third question concerns the Parole Board. From listening to my noble friends and other noble Lords, one realises that the assessment as to why an offender is withholding information is, in essence, subjective. Again, it ends up as an assessment of risk. I am used to risk—I have been in the commercial world for the best part of 50 years. Some risks are relatively low; some relate to areas in which, by definition, the risks are quite high. We know that ourselves today, in dealing with the coronavirus. Murder, manslaughter and the other area we have discussed this afternoon are high-risk areas and I wonder whether such cases can be left to the interpretation of a body such as the current Parole Board.
I understand that there is to be a review of the Parole Board. Obviously, if that is the case, then somebody, somewhere, is uncomfortable with the current situation. The inference is that, somehow or other, the Parole Board has to be made more accountable and transparent. Certainly, transparency is vital in today’s society, as the public really do take an interest. Unless we have that transparency, the public will turn against us as the legislators.
My fourth question concerns the case of Vanessa George. I have read only the evidence and the discussions from the other place. Coming to it fresh, for the first time, I have to ask the Minister: does he really think that, for one reason or another, the wrong decision was made regarding her release?
I come to my fifth question—it is my last, although I also have one comment to make. Is the review still likely to take place, bearing in mind the challenge we are currently facing with coronavirus and the huge challenge of Brexit, which has to be dealt with in less than 12 months?
Lastly, I turn to an area which I am perhaps more comfortable in, namely the future of the word incentivisation. From reading the reports and the discussions from the other place, this does not seem to be part of people’s judgment. I have worked in the commercial world. I have lived in India and Sri Lanka; much of the law of those countries is determined by a combination of Buddhism and Hinduism. In the 50 years that I have worked in the commercial world, I have always taken a keen interest in incentives. Based on that experience, it seems that if incentives are correctly targeted, they can achieve a major positive response, which is sometimes way beyond what was expected or forecast. I simply ask my noble friend on the Front Bench: what are the incentives for the convicted person to provide the key information that they are withholding? Or, to put it another way, what other incentives, other than those that are there already, could we think about using, to try to find an answer to this very challenging area of the law?
My Lords, on behalf of my colleagues on these Benches, I welcome this Bill. I was due to speak on it before the Recess, as was the Minister, the noble and learned Lord, Lord Keen of Elie. In the intervening period, I had the opportunity to talk to Helen McCourt’s mother, Marie McCourt. She is an amazing woman. One cannot but be moved by her tenacious diligence in pursuing this matter over 32 years and, I would say, doing so without personal malice, which is really remarkable in the circumstances.
I will perhaps strike a slightly different note from other noble Lords. I believe that the Parole Board’s work is very necessary and very difficult and that it is one of those public bodies that tends to come in for undue criticism, as the reasons for the decisions it makes, and indeed some of the limitations under which it works, are not always fully understood. While much of the criticism of it is legitimate, it can also sometimes find itself on the end of concerted campaigns.
That said, this Bill has some merit—although I quite understand the questions that have come from around the Chamber about how much of a difference it will make. I believe it is right that we do not adopt a no body, no release rule. I do so for two reasons. First, there are people who will perhaps lack mental capacity and be unable to give the information that at some point they may well have known. Secondly, there are miscarriages of justice and we cannot therefore bring in an absolute rule.
I listened carefully to the speech by the noble Lord, Lord Mann. My family lives on the edge of the Pennines. I remember as vividly as yesterday 1987, the appalling effect that had on the people of the area and the terrible effect it had on Keith Bennett’s family. We do not want to put the wrong sort of incentives in place.
I understand the Bill, the two different sets of offences to which it applies and the approach the Government have taken in strengthening the obligation on the Parole Board to take matters into account. I want to reflect on a point made in another place. I understand that, at the point of sentencing, a court would have to have taken into account the fact that the person had not disclosed. Having said that, I bow to the superior knowledge of the noble and learned Lord, Lord Garnier, and I would like to reconsider some of the points he made. I think we will get to a point at which we discover that this Bill is not tough enough, and at that point we might well wish to follow his proposals.
One of the questions I have for the Minister is: given that there will be a slightly stronger obligation on the Parole Board to take these matters into account, how will the effect of this Bill be monitored? How will we know whether it is working? I have a great deal of sympathy with victims’ families who make the point that this is usually only one indicator of a more general lack of participation in the rehabilitative programmes that exist in prison.
For example, Ian Simms, who has been mentioned—the killer of Helen McCourt—has never taken part in any kind of rehabilitative classes. He has never attended a Parole Board hearing at which Helen’s family have been present. They are therefore left to wonder on what basis the Parole Board has come to a conclusion that he is safe to be let out. That is another question I have to put to the Minister. How confident are the Government that this law will strengthen the Parole Board’s overall remit to determine that somebody has given absolutely no indication of rehabilitation and therefore that they still pose a serious risk on release?
We have focused today on the two cases that have directly given rise to this law, but there are others. I wonder if the Minister, in summing up, could say just how many people in the criminal justice system he thinks this is likely to apply to.
My final question to the Minister is this. When this law reaches the statute book—I sincerely hope that, with cross-party support, it does—will it be open to victims’ families to apply for judicial review of decisions to release that have already been made, or will it not?
It is fair to say that we all wish that this law could be made a great deal stronger. I am not sure that it is possible, to use the words of the noble Lord, Lord Naseby, to incentivise people for whom the withholding of information is an act of powerful callousness that some of us may find hard to credit. All we can do is give as many different tools as possible to those who seek to erode the ability of such people to go on meting out continuing punishment to the families of their victims. I hope that this Bill is passed.
My Lords, this is a short Bill, with just three clauses, but it should not be underestimated because of its length. Unsurprisingly, today’s debate has been much more wide-ranging than the scope of the Bill itself. The Bill is the result of a campaign led on behalf of Helen McCourt; I was pleased and touched to hear about the engagement of the noble Baroness, Lady Barker, with Mrs McCourt. It is a variant of the Bill originally introduced in 2016 as a 10-minute rule Bill by my honourable friend Conor McGinn.
As we all know, Helen was murdered. She disappeared in 1988. The location of her body has never been disclosed by her murderer, who has now been released from custody. The purpose of this Bill is to put into statute the already-established Parole Board guidance when making release decisions about serious offenders. I believe that it is right to take into account the refusal of a serious offender to disclose the whereabouts of the victim’s body. Offenders who refuse to disclose this information pose an ongoing risk to the public. Indeed, it is a form of ongoing control and abuse by the perpetrator of the victim’s family and friends.
Supported by a number of noble Lords from across the House, the noble and learned Lord, Lord Garnier, suggested a way to go further in addressing this method of control, if I can put it that way. His idea was interesting. My question for the Minister concerns the level of monitoring that there will be on the impact of this Bill to see whether it will be possible to take further steps along the lines of what the noble and learned Lord outlined.
The Bill also puts into statute two requirements on the Parole Board when making release decisions. The first, as we have heard, is for offenders who are convicted of murder or manslaughter, where the Parole Board must take into account whether the offender has refused to reveal details of the location of the victim’s body. As we have heard, this is a subjective decision for the Parole Board because it must take into account whether this non-disclosure is the result of a psychiatric disorder or a deliberate decision to withhold information; a number of noble Lords, including the noble Baroness, Lady Bull, and the noble Lord, Lord Balfe, made this point. An interesting point was also made about perverse incentives if one were to go too far down the road of requiring identities to be revealed or requiring a no body, no release-type measure. There is an interesting balance to be struck, which has been addressed in both this House and the other place. Ultimately, it will be for the Parole Board to make that judgment.
My noble friend Lady Kennedy of Cradley asked a number of questions about transparency and keeping victims up to date with decisions on prisoner release. She made a good point about video conferencing in our courts, which we are seeing evolve as we speak. That is developing on a number of fronts. Can the Minister say whether the Parole Board is investigating its use, either for parole hearings or for incorporating victims into the process of the parole hearing? This is a fast-moving area and people should be open-minded about the new technologies which are being used so much at present.
Other questions were on the status of any future victims Bill and how that might lead to greater transparency, properly taking into account people with psychiatric problems, and on reviewing the operation of the Parole Board. On the latter, I understand that various papers have been written, but can the Minister tell us more about the Government’s ambitions for properly reviewing the work of the Parole Board?
We have all lost people who are dear to us and many of us will know victims of crime, but the circumstances of Helen McCourt’s death put the suffering of her family at a different level. Other families have experienced similar tragedies. I hope that this Bill will at least show that people have listened to Marie McCourt. Local MPs have taken up these matters; hundreds of thousands of people have signed a petition to support this Bill; all political parties have supported its objectives, and the Government and now Parliament have listened. I hope that the outcome of the Bill will be to strengthen the role of the Parole Board and to give better explanations and outcomes for victims’ families.
My Lords, I thank noble Lords for what has been a worthwhile debate on this important Bill. I hope that families and victims affected by the sort of circumstances referred to will have taken some comfort from the fact that the Bill has made this much progress and has received support from around the House, albeit some noble Lords may feel that it does not go far enough and some may feel that it should look to issues other than those addressed.
The noble Lord, Lord Ponsonby, whom I welcome to his place on the Front Bench, used the word “balance”, which is an important term in the present context. There has to be a balance of the number of issues and interests. I shall seek to address the points raised by noble Lords in as straightforward and clear a way as possible in the time allowed.
The noble Baroness, Lady Kennedy of Cradley, referred to the guidance to the Parole Board. Certain guidance exists at present, but we ensure that that guidance can never move away from the issue addressed by this Bill by enshrining it in statute. There is a question about the status of victims and their views in the context of the Parole Board hearings, and the whole question of how technology may be brought to bear to improve these hearings. The processes of the Parole Board are the subject of review at present, and no doubt these issues will be taken into account.
A number of noble Lords asked about the timescale for that review. In the present circumstances, I can go no further than to say that it will be brought forward in the course of time. I know that that is not terribly helpful in itself. However, I hope that noble Lords will appreciate that we are concerned to ensure that the review is brought forward as soon as reasonably possible, but that there are other pressures on government at present.
On the observations of the noble Baroness, Lady Bull, again, I concur with her observation that to move from a discretion in guidance to a statutory obligation is itself important. It ensures that there is a clear consideration mechanism to be brought in these cases. We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness. Again, the noble Baroness raised the question of review by the Parole Board, which I have sought to address.
My noble and learned friend Lord Garnier suggested that the Bill does not go far enough. I am reminded of the reference made by the noble Lord, Lord Ponsonby, to balance. I will make two observations. We agree that Parole Board decision-making should be transparent and as open as possible, particularly for victims and their families. However, there are good reasons why parole hearings are held in private. Deeply personal and sensitive issues are discussed regarding the offender, the nature of the offence, the victim and the arrangements for the possible release of an offender, including, for example, where they might or might not live, and the licence conditions that apply. Therefore, the parties must be able to speak candidly, and the prospect of information being made public that could compromise the integrity of evidence has to be borne in mind.
We have taken steps to improve the transparency of the parole process. In May 2018 we amended the rules to allow the board to provide summaries of its decisions, in order to provide victims with an indication of what the position had been. That has improved transparency. In July 2019, the new Parole Board rules were introduced. This created a reconsideration mechanism that can be employed by the Secretary of State, and which has been in one of the cases referred to here.
The second issue that my noble and learned friend Lord Garnier raised was a new offence of non-disclosure. We have to remind ourselves that in sentencing, one is concerned with two elements, punishment and prevention, and the Parole Board’s consideration is of course prevention. Where an offender’s main offence is murder, for which a life sentence is imposed, any additional sentence for a separate offence—for example, of non-disclosure—would have to be served concurrently to the life sentence, because it would be a sentence of immediate custody and could not be deferred to commence at the point the judge sets as the minimum tariff for the murder. Therefore, if a separate concurrent sentence were imposed at or shortly after the time of sentencing for the main offence, it would in all likelihood be completed well before the minimum tariff for the original sentence had been completed. In fact, there is no need for a statutory offence, because courts may consider the common law offence of preventing the lawful burial of a body, which is itself punishable by a maximum sentence of life imprisonment.
Therefore, provisions do exist, but in reality it is more reasonable for the sentencing judge to take account of the non-disclosure when deciding on the length of the tariff, and to increase the tariff accordingly when non-disclosure is seen as an aggravating feature of the crime. We can therefore accommodate this under current sentencing policy, and I do not consider it necessary to introduce a new statutory offence. However, clearly, we will keep the application of the Bill under review—a number of noble Lords raised that point. It would be usual for the implications of the legislation, once it has commenced, to be considered after a period of three years. That gives time for implementation by the Parole Board, for the results to be identified and for improvements, if any, to be contemplated; that will take place in this case as well. On the commencement of the Bill, it is certainly the intention that it should be brought into force as soon as reasonably possible after it receives Royal Assent, which would normally be a minimum of two months after Royal Assent. I do not anticipate that being deferred for any material period, and I am not aware of any reason why it would be, so we would hope to see the Bill in force reasonably swiftly.
I turn to the observations of the noble Lord, Lord Kennedy of Southwark, who asked about a short determinate sentence in the case of manslaughter. There, the person would never come before the Parole Board and the Bill, when it becomes an Act, would therefore not apply to them—so I seek to give him that reassurance.
There was also the question of when somebody maintains that they are not guilty, a point raised by other noble Lords as well. That matter clearly comes before the Parole Board. It has to make a judgment about the circumstances and come to a view about whether such conduct is deliberate. It may be a psychological problem or a mental health issue. That is why we cannot have an absolute rule of, “no body, no parole”, as has been suggested on some occasions. Quite apart from anything else such a rule, while it would not take account of somebody who is suffering a mental illness or who simply has a psychological commitment to denial at all costs, would also potentially be in breach of Article 5 of the European Convention on Human Rights. That allows for punishment and preventive elements in a sentence but would not allow for a non-co-operation element. So there are very real concerns that an absolute rule would be subject to successful legal challenge, which is one thing we do not want in this context. Indeed, if there were to be such a challenge it would merely heap further uncertainty on families and victims of crime in circumstances where we can, if we look forward, avoid that.
The noble Lord, Lord Hastings, raised a number of points on sentencing policy. I am not going to address sentencing as it is not the purpose of the Bill, so it is not appropriate to go there. He also raised release from prison during the Covid emergency and referred to the provision for releasing up to 4,000 prisoners—I stress “up to”—who would be due for release within two months. There have certainly been only limited releases under that provision. However, the whole purpose of that policy was to provide head room within the prison population; that is, to allow for capacity demands to be met within it. They have in part been met because, due to the closedown resulting from the Covid pandemic, courts have not been sitting, trials have not been taking place and people have not been committed to prison as a result of sentences. That has reduced the head room within the prison estate by about 2,500. So it is a question of balancing these issues. We must of course have the means to reduce the prison population if that is urgently required, but we are not going to do it as a matter of course. We do not seek to release 4,000 prisoners just because that figure was the upper limit set in the provisions that were referred to. It is there as head room and will be used if required. If it is not required, it will not be used.
Reference was made to the unfortunate administrative error that led to the release of six prisoners who should not have been released. I commend the prisoners in question, who all returned as soon as the administrative error had been identified. One was then re-released, as it were; the other five were not. But to that extent they co-operated.
The noble Lord, Lord Balfe, asked me a series of about 20 questions. I will seek to address some of them. He asked why we need guidance for the Parole Board. It is appropriate that the Parole Board, like any body of that kind, should work within the boundaries of guidance. It is not that we do not trust it or rely on it but, like any such body, it would like to have a rulebook so that it knows the boundaries within which it operates. As I say, we will bring forward the review when we can.
Will the provisions extend to Scotland and Northern Ireland? I believe that the noble Lord, Lord Naseby, also raised this point. These are devolved issues and it is not for us to legislate for Scotland or Northern Ireland in these areas. However, my understanding is that both those legislatures are addressing this issue and they may in turn bring forward their own legislation in these areas. I would add only this: if somebody was convicted in Scotland but then transferred into the English prison establishment and became subject to the Parole Board in England, the provisions of the Act would apply to them. That is the only exception. Otherwise, we would leave it to the devolved Administrations to discharge their provisions as they think fit.
The noble Lord, Lord Adonis, referred to the observations of the noble and learned Lord, Lord Garnier. I hope that I have addressed those to some extent. Clearly, there is the issue of the interests of victims being considered, and I anticipate that that will form part of the ongoing review into the operations of the Parole Board. I take the point that was made by a number of noble Lords about the introduction of technology to improve that whole process. As we see it accelerating in the courts, why should we not see it accelerating with other bodies? Those developments that just a few months ago people thought would take five to 50 years, are taking five to 50 days to implement, which shows what can be done when it is demanded.
The noble Baroness, Lady Finn, talked about a lack of transparency at the Parole Board; I hope I have addressed that to some extent. There is also the question of the Victim Contact Scheme. No doubt experience indicates that that can be improved, and we may have to look at whether it is an opt-in scheme or an opt-out scheme and how it can best be developed with modern technology to ensure that victims and their families are aware—not after the event but before the event—of these processes. I acknowledge the concern expressed on that point.
The noble Lord, Lord Mann, asked what happens when someone is committed to Broadmoor, for example. Their release would be determined under the provisions of the Mental Health Act and would go before the First-tier Tribunal for determination. If they were then referred back into the prison system, ultimately they would become subject to the parole process and to the Act; otherwise, their release from Broadmoor, or from another institution of that kind, would be under the Mental Health Act and not these provisions.
The noble Lord, Lord Naseby, raised a number of points that I hope I have addressed to some extent. In particular, he asked why we rejected the “no body, no release” point. I have sought to reassure him as to why it is appropriate that we should not accept that particular way forward. There is the question of incentivisation, and one of the purposes of the Bill is to make it very clear, not only to the Parole Board but to prisoners, that this is an issue they will have to face when they reach the preventive stage of their sentence and are seeking to be released into the community. But let us remember that there are evil and manipulative people out there, and they will not cease necessarily to be evil and they will not cease to be manipulative, no matter what legislation we seek to pass. We have to be realistic about that. It is unfortunate, but it is true.
The noble Baroness, Lady Barker, who I acknowledge took helpful and appropriate steps to engage with the McCourts after this Second Reading was deferred, raised the question of “no body, no release” as well, and I concur with the point that she made. She also asked how we would monitor the Bill. As I indicated, it is usual after a period of three years for us to look to review the workings of the Act once it is in force to ensure that it is achieving its necessary objectives.
Finally, the noble Lord, Lord Ponsonby, asked a number of questions. On a victims Bill, I cannot express a view as to how and when such a provision will come forward. On the operation of the Parole Board, we know that it will be the subject of further review, but I cannot fix a date for when that review will be available.
As I indicated at the outset, this is a short but fundamentally important Bill and I hope that I have dealt as far as I can with the specific questions raised by noble Lords, which can of course be taken forward for discussion in Committee.
I can answer that now. The Bill will be retrospective to the extent that it will apply to all those currently serving a sentence of imprisonment who are due to come before the Parole Board. If in those cases the Parole Board were to make an error of law by not applying the provisions of the Bill, that would leave it susceptible to administrative action by way of judicial review. But it will not allow families or victims to come forward and seek to judicially review a decision already implemented by the Parole Board for the release of an individual. I hope that makes clear the point the noble Baroness raised. I commend this Bill to the House.
Bill read a second time.
House adjourned at 4.41 pm.
The Bill was brought from the Commons, read a first time and ordered to be printed.
Considered in Committee
[Dame Rosie Winterton in the Chair]
Murder or manslaughter: prisoner's non-disclosure of information
I beg to move amendment 1, page 2, line 26, at end insert—
“28B Indecent images: prisoner’s non-disclosure of information
(1) The Parole Board must comply with this section when making a public protection decision about a life prisoner if—
(a) the prisoner’s life sentence was passed for—
(i) an offence of taking an indecent photograph of a child, or
(ii) a relevant offence of making an indecent pseudo-photograph of a child;
(b) the Parole Board does not know the identity of the child who is the subject of the relevant indecent image; and
(c) the Parole Board believes that the prisoner has information about the identity of the child who is the subject of the relevant indecent image which the prisoner has not disclosed to the Parole Board (“the prisoner’s non-disclosure”).
(2) When making the public protection decision about the prisoner, the Parole Board must take into account—
(a) the prisoner’s non-disclosure; and
(b) the reasons, in the Parole Board’s view, for the prisoner’s non-disclosure.
(3) This section does not limit the matters which the Parole Board must or may take into account when making a public protection decision.
(4) In subsection (1)(a), the reference to a life sentence includes a life sentence passed before the coming into force of section 1 of the Prisoners (Disclosure of Information About Victims) Act 2020.
(5) For the purposes of this section, an offence is an “offence of taking an indecent photograph of a child” if it is—
(a) an offence of taking an indecent photograph of a child under section 1(1)(a) of the Protection of Children Act 1978 (the “England and Wales offence”), or
(b) an offence of taking an indecent photograph of a child under the law of Scotland, Northern Ireland, any of the Channel Islands, the Isle of Man or any other country or territory that corresponds to the England and Wales offence.
(6) For the purposes of this section, an offence is a “relevant offence of making an indecent pseudo-photograph of a child” if—
(a) it is—
(i) an offence under section 1(1)(a) of the Protection of Children Act 1978 of making an indecent pseudo-photograph of a child (the “England and Wales offence”), or
(ii) an offence of making an indecent pseudo-photograph of a child under the law of Scotland, Northern Ireland, any of the Channel Islands, the Isle of Man or any other country or territory that corresponds to the England and Wales offence, and
(b) the Parole Board believes that an image of a real child was or may have been used in the making of the pseudo-photograph;
and in the application of this section to a relevant offence of making an indecent pseudo-photograph of a child, the references in subsection (1)(b) and (c) to the child who is the subject of the relevant indecent image are references to the real child.
(7) In this section,—
“public protection decision”, in relation to a prisoner, means the decision, made under section 28(6)(b) for the purposes of section 28(5), as to whether the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined;
“relevant indecent image” means—
(a) the photograph to which an offence of taking an indecent photograph of a child relates, or
(b) the pseudo-photograph to which a relevant offence of making an indecent pseudo-photograph of a child relates.”.
This amends the Crime (Sentences) Act 1997 to require the Parole Board to take account of non-disclosures by life prisoners serving sentences for offences relating to indecent photographs or pseudo-photographs of children.
With this it will be convenient to discuss the following:
Government amendment 2.
Clauses 1 to 3 stand part.
This Bill, which passed its Second Reading a short time ago, seeks to respond to two incredibly tragic cases—the tragic murder of Helen McCourt, which happened 32 years ago, and the terrible abuse committed by nursery teacher Vanessa George, who abused the trust placed in her by the parents of tiny children.
Unfortunately I have to attend a Delegated Legislation Committee so I will not be able to take part in these proceedings. However, I thank the Minister and his team for introducing this Bill and I remind the House that it goes beyond the two names that he mentioned. My constituent Linda Jones lost her daughter, Danielle Jones, and the whereabouts of the body have never been revealed. While this Bill will help only a small cohort of people, it does go beyond the two names that the Minister mentioned. I welcome the action that the Government are taking and thank them for what they have done.
I thank my hon. Friend for his intervention. I am very aware that the murderer of his constituent’s daughter, Stuart Campbell, is still in prison. It is to precisely that kind of person that the provisions of the Bill apply, because we want to make sure that when—
Can I add another name to the list? My constituent Michael O’Leary has been missing since January, suspected to have been murdered, and the individual charged with his murder is refusing to let the police know where the body has been hidden. For the families who are now living through this trauma, the fact that they cannot retrieve the body is hugely traumatic. They wanted me to put on the record today their support for what the Government intend to do.
I am very grateful for the hon. Gentleman’s intervention. He powerfully expresses the importance for the families of victims of knowing where the body of their loved one is. When prisoners, including Stuart Campbell, refuse to disclose the whereabouts of a body, it simply adds to the anguish that the families suffer. In the case that the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) mentioned, the individual has been charged but not yet convicted. If that individual is convicted and imprisoned, and the Parole Board comes to consider his release in the future, it will be bound by the provisions of this Bill to take into account the non-disclosure when deciding whether or not to release them.
Having met Marie McCourt, who is Helen McCourt’s mother, the Lord Chancellor and I have heard at first hand just how distressing it is when a prisoner refuses to disclose the whereabouts of the victim’s body. I would like once again to pay particular tribute to Marie McCourt for the campaigning that she has bravely undertaken over these past 32 years since the murder of her daughter Helen.
Related to this is the question of the non-disclosure of the identity of child victims of indecent imagery. I notice that the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) is in his place. He has been speaking out for his constituents whose children were victims of Vanessa George, the nursery school teacher who so cruelly abused the very young, very tiny children in her care, and then refused to disclose the identity of her young victims, thereby adding to the distress of the parents, the families and the victims themselves. I again pay tribute to him for the campaigning that he has undertaken on this topic.
I am delighted that my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) has turned to the particulars of the Bill, because I would now like to address those.
There are two substantive clauses in this Bill. Clause 1 relates to life sentences handed down for murder, manslaughter or indecent images. It is worth mentioning, in response to my right hon. Friend’s intervention, that amendment 1 adds into the provisions of this Bill sentences of imprisonment for public protection, which can also be handed down for making indecent images. Clause 2 covers the slightly broader type of sentence—namely, extended determinate sentences, whether they are handed down for manslaughter or the failure to disclose the subject of an indecent image. He is quite right to point out that in cases where there has been a failure to disclose the victim of an indecent image, it is more likely that there will be an extended determinate sentence than a life sentence. Indeed, in the case of Vanessa George, the sentence handed down was an extended determinate sentence, so that would have been caught by clause 2 rather than by clause 1.[Official Report, 4 May 2020, Vol. 675, c. 6MC.]
The two clauses taken together cover the range of sentences that might be handed down—life sentences and imprisonment for public protection under amendment 1, and extended determinate sentences under clause 2. The substance of these two clauses ensures that when the Parole Board considers release and comes to make its decision about dangerousness and public protection, the requirement to take into account non-disclosure, and the reasons, in its view, for that non-disclosure is put on a statutory—a legal—footing. That is enshrined in new section 28A(1)(a) and (b) in clause 1(1) . This means that at no point in the future can the Parole Board ever decide to vary its guidelines to disregard these matters. It will also very much focus the mind of the Parole Board, and send a message to it, that this House—this Parliament—takes non-disclosure very, very seriously and expects that to be fully reflected in release decisions.
I notice that the hon. Member for St Helens North (Conor McGinn) is now in his place. I would like to repeat the tribute I paid earlier to his and his constituent Marie McCourt’s campaigning on this topic over very many years. It is a testament to his perseverance through what has been a turbulent period in British politics that this Bill is now here in Committee. Without his work, this would certainly not have happened.
Amendment 2 to clause 1 is a technical, consequential amendment—a subsequent provision just to make sure that amendment 1 works technically.
I hope that I have explained the operative provisions of this Bill, which will place on a statutory footing the obligation on the Parole Board to consider non-disclosure of victims’ whereabouts or non-disclosure of the identity of a child victim of indecent images. I think the whole House, and indeed all our constituents, will very strongly welcome that. I commend the amendments and the clauses to the Committee.
I rise in support of the amendments that the Minister has just set out to this very important Bill.
The crimes that Vanessa George committed against the babies and toddlers in the constituency I represent at Little Ted’s nursery were simply disgusting. They will be abhorred by any right-minded person. It does not need a partisan label—a party political badge—to know that this is a good piece of natural justice: a law that should be supported by everyone of all parties.
I set out the particular case around Vanessa George on Second Reading, but on behalf of the families—those who were able to come forward—I want to thank the Minister and his ministerial colleagues for the way they have brought forward this campaign. It would be very easy for a Government to ignore a campaign by an Opposition MP, and I am grateful to Ministers for not doing that but instead looking at the victims and the severity of the crimes involved, and acting accordingly by doing what is right.
Vanessa George still shows no remorse for the crimes that she committed and no remorse for the fact that she still refuses to name the children she abused. We do not know how many children at Little Ted’s nursery she did abuse, because she has not told anyone. We know how many children were there, and we have a good idea about which children might have been exposed to her cruel and evil crimes. Those children are now fast-emerging young people who are coming to terms with their place in the world and the way that they feel. The crimes that were committed against them by Vanessa George as children will have long-lasting psychological, and in some cases physical, consequences for them in future. A child not knowing whether they were a victim themselves not only deprives the families of the peace of mind of knowing but deprives that child of the help and support they might otherwise have been able to access. Uncertainty is a prison that those children and their families will be in for quite some time.
The right hon. Member for New Forest West (Sir Desmond Swayne) raised an issue in relation to life sentences. The families do not mind what the sentence is. Anyone who declines to name the children they abuse should not be eligible for early release. In particular, on the question whether a life sentence is passed down for an offence of taking an indecent image of a child or a relevant offence of making an indecent pseudo image of a child, I would be grateful if the Minister could set out whether that also applies to contemporaneous charges. In many cases, it is very unlikely that a life sentence would be passed down just for taking those images, but it might be passed down for the indecent images and the acts of abuse themselves, so would that collection of charges fall under the description in amendment 1 under new subsection 28B (1)(a)(i) and (ii)?
It is really important that, on behalf of the families, I try to get as robust a Bill as possible. Their experience of not knowing, of going to the nursery and of being told, in the first instance, that their child—a baby or a toddler —may have been abused and that the images may have been shared with a network of paedophiles, as well as the crushing uncertainty about whether those images might still be on a paedophile’s hard drive somewhere or in some rotten corner of the dark web, is a demon that sits with these families for quite some time, so anything we can do to make the Bill as robust as we can would be welcome.
Vanessa George received a novel sentence at the time for her crimes. That indeterminate sentence complicated the case, and the Parole Board addressed that when it tried to make its judgment. This legislation will go a long way towards preventing the early release of someone such as Vanessa George in the future. It also sends a clear message to those who abuse children that if they refuse to name the children, they will not be released early. In fact, that additional reticence—that hesitation or refusal to come forward with information—will be regarded negatively by the Parole Board.
On behalf of all the families, I want to put on record their thanks for the swift action Ministers have taken. Parliament and politics often get a bad name, but Ministers have responded swiftly and in such a decent way to a campaign that was so important to families in Plymouth. I thank them, and I encourage Members to ensure that the Bill moves swiftly through the rest of its stages in Parliament.
Progress should always be welcomed, and the Bill is progress. It sends a clear message to Parole Board members about the Government’s priorities. Our priority should be to have a laser-like focus on the victims of crime and their families.
Of all the things that can happen to us, having a close friend or family member murdered or fall victim to a paedophile is one of the greatest possible injustices. Through the police, the courts and the wider justice system, ordinary people should be able to secure redress for injustice. That is why we have these systems and why they have been introduced and built on over time. Otherwise, ordinary people would have no alternative but to take matters into their own hands.
Today, we are trying to deliver improved redress in at least one regard. We are aiming to prevent the truly horrendous injustice of a victim’s family having to watch as the person who killed their loved one walks away from prison having not revealed the location of their relative’s body. We are also aiming to prevent paedophiles from leaving their victims unidentified, with all the uncertainty and distress that that might cause families whose children were within the reach of these people.
To ensure that we truly honour the memory of Helen and others, it is vital that we ensure that the changes and the progress we are making in the House today make a difference in the real world for victims of crime and their families. That is how we ensure that campaigners such as Marie are truly able to think about their lost relatives and to take at least some comfort from the fact that their deaths have led to something positive.
Will any guidance be issued to the Parole Board as to how the new statutory duty is expected to be given consideration and what weight it is likely to carry? Will the Minister outline the expected impact this change in law will have? How confident can we be that people who, prior to this law, would have been released will now not be?
I would ask that we keep an open mind on this issue. Today’s legislation is welcome and positive, but we need to make sure that, in reality, it secures the redress that victims and their families rightly seek.
As I stated on Second Reading, the Opposition will support the Bill. It rightly addresses the situation of prisoners who have been convicted of murder or manslaughter who then refuse to reveal the identity or the whereabouts of the body, and also the situation of those who have been convicted of taking or making indecent images of children and refuse to identify their victims. Under the Bill, the non-disclosure in both cases is to be formally considered by the Parole Board when someone is being considered for release on licence.
The Bill is the result, first, of Helen’s law, which was introduced by my hon. Friend the Member for St Helens North (Conor McGinn). My hon. Friend’s constituent Helen McCourt was murdered, and her mother has led the campaign for Helen’s law. To this day, Helen’s murderer refuses to disclose the whereabouts of her body. That compounds the family’s grief and denies them the right to lay their loved one to rest.
My hon. Friend the Member for Plymouth, Sutton and Devonport (Luke Pollard) has also campaigned for the provisions in the Bill. The shocking case of the nursery assistant Vanessa George shook the community in his constituency. Vanessa George took indecent images of children at the nursery where she worked and was subsequently convicted, but she still refuses to identify the children.
I cannot praise enough the determination and tenacity of Marie McCourt, the mother of Helen McCourt, who fought and lobbied so hard to get this Bill to become law, as it surely now will do, or the community in Plymouth, Sutton and Devonport, which also campaigned hard to get the Bill on the statute book in relation to the images of the children.
The Government have done a good job in drafting the Bill and placing the requirement in it on the Parole Board. The Parole Board rightly owes a duty to victims. Reliving the trauma and horror of a crime when giving a statement can sometimes be distressing and overwhelming for victims, and they should not have to go through that trauma. If the Parole Board was minded to release a prisoner because they were no longer regarded as a threat to the public, the only option open to victims to challenge that view would be to seek a reconsideration of the Parole Board decision. The Bill puts in an additional safeguard in these exceptional cases; we are not talking about a huge number of cases, and the changes will very likely impact only a handful of cases each year, but the suffering caused is immeasurable for the families and loved ones affected.
There cannot be many people who do not agree with the measures in the Bill. It is clear from the speeches on Second Reading and the comments made in this Committee stage that the Bill has cross-party support. To condemn the relatives of victims to further unnecessary anguish is truly appalling and should not go unpunished. This Bill is short—only three clauses—but by amending the Crime (Sentences) Act 1997 and the Criminal Justice Act 2003, it allows for non-disclosure to be formally considered when deciding whether to release a prisoner on licence. That helps to avoid the additional pain and suffering of having to draft a victim statement. The Minister eloquently gave the details of the two amendments the Government have tabled, so I will not repeat or explain them, but both have the support of the Opposition.
As the prevalence of image sharing increases, it will be much easier for the identities of child victims of indecent images to be hidden via various software, and there is a real possibility that there could be more cases of indecent images of unknown child victims. Sentencing guidelines must keep pace with new developments in technology and the regulation of associated offences that we are yet to identify. I therefore await with interest the Government’s White Paper on sentencing, which is due later this year.
I hope the Government will tighten up the victims code and think about introducing a victims law. For now, however, the Opposition are content to support the Bill and the two Government amendments and to help Helen’s law become an Act of Parliament.
I thank the shadow Minister for the constructive tone in which he has engaged with the Bill in general and for his remarks a few moments ago. To pick up on his comments on the sentencing White Paper, we do indeed intend to bring it forward later this calendar year. Hopefully, we can look at a much wider range of issues connected with sentencing to make sure that the punishment always fits the crime. In relation to a victims Bill, it is our intention to legislate in that area later in the current Session.
I want to reassure the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) on both the points he raised. Where there is a collection of offences, some of which come within the scope of the Bill but others of which do not, this Bill will be engaged when release comes to be considered, even if only one of the offences falls within its scope. His constituents can be reassured that the Bill will apply in those circumstances.
All sentence types are covered. Clause 1, which amends section 28 of the Crime (Sentences) Act 1997, will cover life sentences and, as amended, sentences for imprisonment for public protection. Clause 2, which amends the Criminal Justice Act 2003, covers extended determinate sentences, so all sentence types are covered by this Bill, as amended. I can therefore give the hon. Gentleman the categorical assurance he requested.
In relation to the question raised by my hon. Friend the Member for Crewe and Nantwich (Dr Mullan), I expect the Parole Board to give significant weight to non-disclosure. The fact that Parliament has gone as far as legislating in this area will send an extremely clear message to the people taking these decisions, and I expect this to weigh heavily on the mind of Parole Board members when they take these decisions. A wider review into the operation of the Parole Board will commence in due course—the so-called root-and-branch review announced in the manifesto last December—and there will be an opportunity for my hon. Friend and all Members to contribute to that discussion.
Putting on the face of the Bill the requirement to take non-disclosure into account means that it can never be changed, other than by a subsequent Act of Parliament. It will also send a message to Parole Board members about how important these issues are for Members of this House, for the reasons described today. I commend the amendments and clauses to the House.
Amendment 1 agreed to.
Amendment made: 2, in clause 1, page 2, line 30, leave out “Section 28A contains” and insert “Sections 28A and 28B contain”.—(Chris Philp.)
This amendment is consequential on Amendment 1.
Clause 1, as amended, ordered to stand part of the Bill.
Clauses 2 and 3 ordered to stand part of the Bill.
The Deputy Speaker resumed the Chair.
Bill, as amended, reported.
Bill, as amended in the Committee, considered.
There are no amendments on consideration.
As no non-Government amendments have been made to the Bill, I am signing a certificate on the basis of the provisional certificate issued with the selection list. As indicated in that provisional certificate, I certify that the Prisoners (Disclosure of Information About Victims) Bill relates exclusively to England and Wales on matters within devolved legislative competence, under Standing Order No. 83J.
Does the Minister intend to move a consent motion in the Legislative Grand Committee?