Prisoners (Disclosure of Information About Victims) Bill

Debate between Lord Keen of Elie and Baroness Barker

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 28th April 2020 Lords Chamber

[Lord Keen of Elie]

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.

[Baroness Barker]

Will the Minister please write to me about whether this legislation once passed can be used by the families of victims to consider judicial review of decisions to release that have already been made?

[Lord Keen of Elie]

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.