Prisoners (Disclosure of Information About Victims) Bill

Lord Faulkner of Worcester Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I thank noble Lords and noble and learned Lords for their contributions to the debate in Committee —[Inaudible.]

[The Deputy Chairman of Committees (Lord Faulkner of Worcester)]

Could the noble and learned Lord, Lord Keen, please lean a little closer to the microphone?

[Lord Keen of Elie]

Yes, of course, although I do not think I could get much closer. Can you hear me?

[The Deputy Chairman of Committees]

That is better.

[Lord Keen of Elie]

Despite Amendments 1 and 3 having—[Inaudible.]

[The Deputy Chairman of Committees]

Sorry, we are still not hearing you.

[Lord Keen of Elie]

I am not sure what I can do about that. Can you hear me now?

[The Deputy Chairman of Committees]

That is better, yes.

[Lord Keen of Elie]

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.]

[The Deputy Chairman of Committees]

I am so sorry to the noble and learned Lord, Lord Keen, and I apologise to all noble Lords. We have to adjourn for 10 minutes while we try to sort out this technical problem. We will resume shortly after 3.25 pm.

--- Later in debate ---

[The Deputy Chairman of Committees]

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.

[Lord Keen of Elie]

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.]

[The Deputy Chairman of Committees]

I apologise to the Minister but we cannot hear him properly. We will adjourn for five minutes in the hope that he will be able to dial in to speak in the debate. The Committee is adjourned until 3.34 pm.

--- Later in debate ---

[The Deputy Chairman of Committees]

My Lords, welcome back. We are on Amendment 1 of the Prisoners (Disclosure of Information About Victims) Bill. I hope we will now hear from the Minister, the noble and learned Lord, Lord Keen of Elie.

[Lord Keen of Elie]

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.

[The Deputy Chairman of Committees]

I have had notification that the noble Lord, Lord Adonis, wishes to speak after the Minister.

[Lord Adonis]

No, I simply wished to observe that we could not hear a word that the Minister was saying the first time around, but he was extremely clear the second time and I thought he gave a very effective response.

[The Deputy Chairman of Committees]

In that case, I call the noble Lord, Lord Blencathra, to reply to the debate.

[Lord Blencathra]

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.

--- Later in debate ---

Amendment 1 withdrawn.

[The Deputy Chairman of Committees]

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.

Amendment 2

Moved by