Prisoners (Disclosure of Information About Victims) Bill

Baroness Bull Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

Moved by

[Baroness Bull]

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.

[Baroness Bull (CB)]

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.

[Lord Hope of Craighead (CB) [V]]

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.

--- Later in debate ---

[Baroness Bull]

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.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

Does the Minister wish to reply? No?

[Baroness Bull]

In which case, with regret, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.