Prisoners (Disclosure of Information About Victims) Bill

Lord Balfe Excerpts

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

[Lord Balfe (Con)]

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?

Prisoners (Disclosure of Information About Victims) Bill

Lord Balfe Excerpts

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

[Lord Thomas of Cwmgiedd (CB) [V]]

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.

[Lord Balfe (Con) [V]]

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.

[Lord Carlile of Berriew (CB) [V]]

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.