Victims and Prisoners Bill

John McDonnell Excerpts

2nd reading
Monday 15th May 2023 Commons Chamber

[Sir Robert Neill]

The short answer is that none has come to my attention or that of the Committee. We did endeavour to secure a range of views, particularly from practitioners in the field. It is helpful to hear such views, and I therefore hope that as the Bill proceeds, the Secretary of State and his Minister of State, my right hon. Friend the Member for East Hampshire (Damian Hinds), will, as fair-minded people, find opportunities to take them on board.

What we want is a system that is robust, because that is critical, but also—as the Secretary of State said—a system that is operationally effective. One of my main concerns is that the evidence we did receive suggested, in respect of nearly all the principal aspects of part 3, that there were serious question marks over how operationally effective it would be. This is a classic case of where Committee improvements ought to be made, and I hope the Government will move to do that.

I want briefly to flag up some of those areas. The current test is a very short one of some 20 words, but it is robust. Essentially it says that the protection of the public comes first, and that is what we want to achieve anyway. It is expanded somewhat by a non-exhaustive number of other matters that can be taken into account. There is nothing wrong in that, but I hope that it does not make the test unduly complicated. It is also worth remembering that there is sometimes a misunderstanding, particularly in media reporting, in relation to the work of the Parole Board. That comes in two forms. First, as the Secretary of State said, in 99% of cases people released on parole do not reoffend, and that context is important. Secondly, there is a suggestion of some kind of balancing test, but that is not the case.

It is clear from the evidence that since the case of Knight in about 2017, the Parole Board very properly changed its guidance to reflect the primacy of the protection of the public test. I think there is an element in this part of the Bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need. So let us look again at the best way to do the test. There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?

The next matter is the way in which the Secretary of State will, from time to time, step in and review. There is nothing wrong with a review but I have two concerns about the way it is done. In certain cases set out in the Bill, it will be necessary, if the Secretary of State chooses to carry out those powers, to intervene and substitute the Secretary of State’s decision, including on the facts, for those of the board, which will have heard first-hand evidence. The Secretary of State is not in a position to hear first-hand evidence, so he would have to rely on a provision that enables a person to be appointed to interview the applicant for parole and then report to the Secretary of State. I do not think the Secretary of State would normally feel happy acting on hearsay in such circumstances, because at the end of the day it is second-hand evidence and he would have to substitute his judgment for that of those who had heard first-hand evidence. I am not sure that is a fair or satisfactory way of resolving that problem.

The second concern relates to the very proper means of review. As the Secretary of State rightly said, there has to be an independent review, but at the moment the suggestion is that, among other things, this could go to the upper chamber. I would ask him to reflect on the appropriateness of the upper chamber. Logically, the element within the upper chamber that would hear these cases is the upper tribunal. The upper tribunal, as a logical part of that, would be the administrative chamber, which is essentially there to deal with points of law; it is not a fact-finding body.

The route of application to appeal against the Secretary of State’s decision has two grounds. One is the normal ground of public law and judicial review—involving unreasonableness, for example—and that is fine. The administrative chamber no doubt deals with those kinds of things. This also includes an appeal on the merits, and it has to, to make it ECHR-compliant, but this would involve a rehearing, and the upper chamber has no experience of re-hearing the merits. So this route of appeal does not seem to be right or practical.

Another point to remember is that there is no requirement for leave in this route. If someone appeals to the upper tribunal on the ground of legal deficiency, such as unreasonableness, they have to get leave. If they apply on the ground that the Secretary of State got it wrong on the merits, they do not have to get leave at all and they can have a rehearing, so everyone who feels aggrieved at the Secretary of State’s decision will apply on the ground that they want to challenge the merits and therefore have a rehearing. The number of unmeritorious appeals will therefore greatly increase, which is hardly the objective of this piece of legislation. It would also put these matters into a chamber that—with absolute respect to those who sit in the administrative chamber—is not geared up to hear evidence to do rehearings. It is going to the wrong place, so I hope we at least reflect on a better means of achieving that end.

The same goes for the Secretary of State’s powers to intervene and rehear. Would it not be better simply to toughen the current power of redetermination? Surely asking for a case to be reconsidered by a differently constituted panel would be a more practical way forward. There are practical and sensible things that could be done, but unfortunately they were not picked up by the Bill’s drafting, perhaps because nobody who knows much about it was asked.

Clauses 42 to 44 disapply section 3 of the Human Rights Act for the purposes of these hearings. Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have to have regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach.

Clause 46 addresses the Parole Board’s composition and the appointment of board members. It is perfectly legitimate to have more people with law and order experience, which could be included as a category, but we must be careful to make sure there is no suggestion that the Secretary of State can say that a particular class of person should sit on a panel for a particular type of hearing, as that would go beyond independence. There is strong case law from our domestic courts, never mind elsewhere, to say that the Parole Board carries out a judicial function and therefore must have a proper degree of judicial independence. There is a risk that the clause, as currently drafted, offends against that.

The final issue that arises is with the power to dismiss the chair of the Parole Board. There is already a protocol for removing a chair of the Parole Board who loses the Secretary of State’s confidence, and it was exercised after the Worboys case—I think it is called the Mostyn protocol. Why do we need an extra statutory power when we already have a way to do it? Establishing a statutory power creates another problem, because clause 47 says that the chair of the Parole Board shall not sit on any panels of the Parole Board. When we heard evidence, no one could work out why, but it has subsequently been suggested to me that it would be interfering with judicial independence to remove a chair who is sitting on a panel.

Perhaps the answer is not to have the needless power to remove a chair, because we can see the illogicality: if we want a Secretary of State to be able to remove the chair of the Parole Board, we have to make sure they are not carrying out any judicial functions, because otherwise the Secretary of State would be interfering with judicial independence. But we already have a means of removing a chair of the Parole Board, and it works, so why go down this rabbit hole?

My observations on part 3 are intended to be helpful and constructive, and I am sure the Secretary of State and the Minister will take them on board.

The Victims and Prisoners Bill makes no mention of the continuing injustice, as the Secretary of State rightly said—the blot and stain on our judicial landscape—facing a particular class of prisoner: those imprisoned for public protection. The House recognised that indeterminate sentences had failed and so abolished them, but not retrospectively. An increasing number of people on open-ended sentences, which Parliament has abolished, are being recalled. People have no hope of their sentence coming to an end and, because they are also potentially subject to a life licence, more people have been recalled than are serving their original sentence. Something has gone badly wrong here, which is doubtless why Lord Blunkett, the creator of the sentence, said, “This has gone wrong and needs to be changed.” It is also why Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, and not someone generally regarded as a soft touch in sentencing matters, said, “The only logical way to resolve this is to have a resentencing exercise.”

[John McDonnell (Hayes and Harlington) (Lab)]

I speak as an old boy of the Justice Committee. I do not want to rehearse the debate we had only a few weeks ago, but there seems to be some reticence among those on both Front Benches about the proposals the hon. Gentleman put forward through the Select Committee; they seem to think that they would result in the large-scale release of dangerous prisoners. Could he emphasise exactly what the Select Committee was proposing: a panel of experts carefully preparing a way forward on resentencing that balances public protection and the rights of the victims, with securing justice? That has the wholehearted support of organisations on the frontline, including the Prison Officers Association, the probation officers, the courts staff and, as he said, the former Home Secretary and the Supreme Court judge. This needs to be addressed now. If we do not use this Bill to introduce such a measure, we will lose the opportunity, possibly for another number of years.

[Sir Robert Neill]

The right hon. Gentleman is entirely right and I agree with him. We are in a hopeless situation at the moment and there has been a misunderstanding. The Select Committee took careful evidence and made a number of recommendations, not purely on resentencing, but on a number of other practical measures that may be taken to improve the way in which IPP prisoners are dealt with in the system. Frankly, at the moment, they are set up to fail. They have to go on courses, which they are told about only a few weeks before their parole hearing and the course waiting list is two years in some places, we are told. They may be in a prison where the courses do not exist or are not available. They are then on permanent licence, where they can be recalled at any time. There is scope to have that removed after 10 years. We can see no evidence as to why the period should not be five years, rather than 10. If somebody has shown willing and gone straight for five years, there is no evidence to suggest that going on for 10 makes any difference to the reoffending rate. So why do that? Why set people up to fail?

On the resentencing exercise, as the right hon. Gentleman rightly says, we were not at all seeking to say, “Everybody will be resentenced immediately. Everybody will be released immediately.” Having acted in some cases that involved sentences of this kind, I know that some people will always remain very dangerous. There are some people who, by the nature of the index offence, will remain in prison for a long time and the determinate sentence that they ultimately receive under our scheme may be a very long one. So the idea that that approach opens the doors is wrong. What it does do is give certainty to everybody and give hope. Tragically, I was informed that, in the four weeks after the former Secretary of State rejected the entirely of the serious recommendations of the Select Committee, three IPP prisoners took their own lives. I hope that there was no connection there, but it does not say much for the sensitivity with which this has been handled in the past. I know that that is not the view of this Secretary of State, who is a deeply humane man and will want to do justice by this.

The resentencing exercise is not something that can be done quickly. It would require an expert panel of people, including lawyers, to say how best to do it and to work it through. I beg the Secretary of State to think again about using this opportunity. I have had a clause drafted that would give effect to the Select Committee’s recommendation. I would much prefer it if the Government said, “We will pre-empt that and bring forward our own proposals to set up an expert panel.” That may take some time and it may not come into effect for a period, but it would at least give people hope that something serious was being done, that work was being followed up and that there was a willingness to look at the matter again; I would have thought that that was only fair. Equally, it cannot be fair that soon some people will have served longer than the maximum sentence for the offence of which they were convicted. That cannot be just. This is not being soft. It is just being fair and just and that is part of the balance of the system.

I commend the good parts of the Bill to the House, and commend the Secretary of State to the House and to the legal fraternity, who respect him highly. In considering those outstanding matters, I ask him to apply exactly the same test as he and I, and any other advocate worth their salt, have set to juries day in, day out: try the case on the evidence, go on the evidence and apply your mind fairly and dispassionately. That is the right approach. If he does that, we will come to some changes in the Bill.

Victims and Prisoners Bill

John McDonnell Excerpts

Report stage
Monday 4th December 2023 Commons Chamber

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

Diolch yn fawr, Mr Deputy Speaker; it is a pleasure to contribute to this debate. I rise to speak to my new clause 33, a probing amendment based on concerns I expressed on Second Reading about the Victims’ Commissioner lacking enforcement power, undermining their ability to protect victims. The shadow Minister, the hon. Member for Cardiff West (Kevin Brennan), made similar comments during his contribution. I welcome the fact that Baroness Newlove has been appointed as Victims Commissioner—that is a step forward from where we were on Second Reading. I hope she has had the opportunity to influence the Bill before today’s debate.

On Second Reading, I talked about my constituents, the family of the murdered Mike O’Leary. Since Mike’s death, the family have become avid campaigners for victims’ rights, and the main thing they consider is missing from this much-awaited Bill is the enforcement powers that would give the Victims’ Commissioner some teeth. The murder of Mr O’Leary was a particularly heinous crime—his body was desecrated—and I look forward to the Sentencing Bill on Wednesday, when we will have an opportunity to discuss whether a new crime should be introduced and whether sentencing guidelines should be amended to reflect the extra suffering of the bereaved families.

Baroness Newlove, in her response to the King’s Speech in the other place, mentioned a sobering survey that her office did on victims’ experience of the criminal justice system. Of the 500 people surveyed, 71% were dissatisfied with the approach of the police to the crime they experienced, 34% said they would not report another crime, less than 29% were aware of the victims code, only 29% were offered the opportunity to make a victim’s personal statement and only 8% were confident that they received justice by reporting a crime. If the aim of the Bill is to bring victims’ experience into the heart of the criminal justice system, it has its work cut out.

The commissioner should be the key role for driving the change that is needed. On Second Reading, I pointed out the powers of the Welsh Language Commissioner under the terms of the Welsh Language (Wales) Measure 2011, introduced by the Welsh Government. The Welsh Language Commissioner’s enforcement powers range from offering advice and training to requiring an organisation to prepare a plan to prevent further continuation or repetition of the failure, requiring an organisation to take concrete steps to prevent further failure, publicising the failure of an organisation to comply with the measure and imposing a civil penalty of up to £5,000. Empowering the Victims’ Commissioner along the lines of the enforcement powers of other commissioners would considerably strengthen the hand of victims and help transform the criminal justice system so that victims are at its centre. I hope the other place may take up my new clause in its deliberations.

[John McDonnell (Hayes and Harlington) (Lab)]

I rise to speak to new clause 1, and new clauses 2 and 3 in my name. When we talk about victims, it is important that we also discuss taking responsibility for the victims of Parliament’s activities, and some of the victims of Parliament’s activities are the IPP—imprisonment for public protection—prisoners. The hon. Member for Bromley and Chislehurst (Sir Robert Neill) has campaigned on this matter for years, and the Justice Committee has undertaken detailed investigations and reports, which I think we need to take more seriously in this House because of the urgency of the matter.

There are nearly 3,000 IPP prisoners still in prison. They are in prison under legislation passed in this House by David Blunkett, who now recognises that there is an injustice—there has been a miscarriage of justice—and is appealing to us to correct that injustice by legislating now. There is example after example of people who have gone to prison on small tariffs. Martin Myers was sentenced on an 18-month tariff, and he has served 17 years. Wayne Bell has served 16 years on a two-year tariff, and Aaron Graham has served 18 years on a three-year tariff. This is Kafkaesque. These people have committed relatively minor offences, but are trapped within the prison system and cannot get out.

It therefore behoves us to address this issue, which is why the Justice Committee undertook the review and brought forward not a policy of releasing these prisoners without protection and security, or whatever, but of re-sentencing, with special expertise brought in to assess each prisoner and see whether it is safe at least to give them a determinate sentence so as to give them some hope. That is the problem here: we have lost 88 of these prisoners through suicide because they had no hope. If we listen to the Prison Officers Association, the Prison Reform Trust, Amnesty, Liberty and the families, we can understand why, because it is not just the prisoners who are serving these sentences, but their families.

What have we found in the last year? We have lost another eight prisoners who have committed suicide, with 1,600 self-harm incidents among this group of prisoners over the last 12 months. What we need to do now is to take forward the hon. Member’s proposals, and if the Government are not satisfied with them at the moment, let us work on them until the Bill goes to the House of Lords and see what we can do in the other place. In addition to that, I have put forward minor amendments saying that we should at least offer such prisoners—those inside, but also those on licence—advocacy and mentoring so that they can prepare themselves properly for resettlement and release from prison, but also so that when they are outside they are not recalled, as they are at scale at the moment.

[Sarah Olney (Richmond Park) (LD)]

I rise to speak to amendment 26, which I tabled. It is supported by hon. Members across the House and would enable victims to request a transcript of court proceedings free of charge, as that would be a huge step towards improving the transparency and accessibility of our justice system.

In 2020, my constituent Juliana Terlizzi was drugged and raped in her sleep by her then partner. Two years later, Juliana’s attacker was finally convicted, but she can barely remember what was said in the courtroom due to trauma and emotional distress. Following the trial, she was advised by a therapist to apply for a transcript of proceedings to allow her to revisit and process what was said in court. Her application for a free copy of the transcript was rejected, and she was then quoted an astonishing £7,500 by one of the private companies outsourced by the Government to produce transcripts. I soon discovered that Juliana’s extortionate quote is not an isolated case. Other victims have faced fees of up to £22,000. How can anyone be expected to pay such a fee? Court transcripts should not be a luxury that only a few victims can afford; they are a vital tool in aiding victims’ recovery. As victims and bereaved families do not routinely attend trial, transcripts are often the only means available to them to establish exactly what happened in the courtroom.

I secured an Adjournment debate on the cost of court transcripts last month. During the debate, I was pleased to hear the Under-Secretary of State for Justice, the hon. Member for Finchley and Golders Green (Mike Freer) affirm the Government’s commitment to the principle that justice must be open and transparent, and I welcomed his comments regarding the work that officials within the Ministry of Justice are doing to improve access to court transcripts. I welcome the Minister’s opening remarks committing to a trial of making sentencing remarks available free of charge. However, it is important to establish that we still need full transcripts to be available, so that victims can have the context within which those sentencing remarks are made. The importance of access to transcripts has been emphasised by the Victims’ Commissioner, the Justice Committee, charities such as Rape Crisis, Refuge, and Support after Murder and Manslaughter, and dozens of hon. Members from six different parties across the House.

There are steps the Government could and should be taking to reduce costs, such as utilising new technologies and assessing the value for money of contracts held with transcription services. I have repeatedly raised the idea to Government of enabling victims to request an audio file of court proceedings. That would be a low-cost solution to improving transparency and ensuring that victims can access a record of court proceedings. I welcome the commitment of the Under-Secretary of State for Justice in that Adjournment debate, and in written correspondence to me, that he will look in greater detail at that issue. Above all, victims and bereaved families need access to full, accurate transcripts of court proceedings at no cost to themselves. Anything less will be an injustice. I urge Ministers in the Ministry of Justice to listen to the concerns of victims, and to look more closely at what further can be done to tackle the injustices faced by victims.