Prisoners (Disclosure of Information About Victims) Bill

Lord Garnier Excerpts

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

[Lord Garnier (Con)]

My Lords, I have read the debates on the Bill in the other place, and I can well understand the alacrity with which it was approved. I can also understand the sense of outrage and distress felt by those close to the victims of killers, be they convicted of murder or manslaughter, when they are denied knowledge of where their loved ones have been abandoned by the criminal. To be denied a funeral because the person responsible for the death will not tell the relevant authorities where the remains are unquestionably adds to the distress and grief of the family.

We know of the cases which have been the catalyst for the Bill. There will be, I have no doubt, examples of the heinous behaviour that predated the Moors murders in the 1960s. More recent cases have been cited and in all of them, the simple recitation of the killer’s name is enough to reawaken the revulsion and hideous sense of loss that these foul people have aggravated by refusing to disclose the whereabouts of their victim’s body. For the parents of children who may have been sexually abused, the horror they have to contend with in not knowing whether the convicted sex offender abused their child is only to some miniscule amount mitigated by their child being alive and with them at home. Imagine the fear these parents must harbour that later, in adolescence or adulthood, their child will be traumatised by remembering or coming to realise what happened either to them or their classmates many years before.

The Bill is designed to mark in public policy the revulsion that right-thinking members of society feel for these serious offenders who, not content with killing or abusing their victims, add to the pain and suffering of their victims’ families and friends by keeping secret information which, if they had a scintilla of remorse or empathy, they would give up to the police. No doubt there will be some killers and sex offenders who take a perverse pleasure in prolonging the agony caused by their crimes by refusing to say where they have abandoned the body of their victim, or withholding the identities of those whom they have abused.

The Bill, as has been explained by my noble and learned friend and by the noble Baronesses, Lady Kennedy and Lady Bull, concerns the obligations of the Parole Board when it considers whether an offender merits release from prison. It places a statutory duty on the board to consider circumstances where the offender does not disclose the sort of information I have referred to as part of its assessment of whether they should be released from custody. The board is already subject to non-statutory guidance to the same effect so the Bill, when enacted, will promote that to a statutory duty. Although I understand the welcome the Bill was given in the other place and congratulate the Members of Parliament who have campaigned on behalf of victims and their families to bring it into law, I am not sure that the approach adopted by the Bill goes far enough.

The Parole Board has always had the power to consider the release date of long-term prisoners and, although its decisions are in certain circumstances amenable to judicial review, its procedures are essentially held in private. The public and the media do not attend its hearings and its reasoned decisions are not, as a rule, published. Decisions about the liberty of the subject, especially concerning the future of offenders imprisoned for very serious violent or sex crimes, should be made in public, or at least the reasons for the Parole Board’s decisions, be it to release or not, should be available to the public. I can see that there may be certain facts or details about the victim and the case as a whole that may need to be kept confidential but, by and large, the default position should be for open justice.

I have a further concern about what is proposed by the Bill. I am not convinced that it is right to revise this aspect of the criminal justice system by guidance, even when that guidance is imposed through the medium of a statutory duty. In my judgment, if a prisoner is to be faced with a longer period in custody, it should be through a statutory arrangement, but that arrangement should not be administrative. Rather than telling the Parole Board that it must take into account that an offender has not provided certain details about their offences, it should be a discrete criminal offence, subject to appropriate defences, for a convicted defendant not to inform the police or other proper authority where or how a victim’s remains were disposed of.

The trial of the defendant for this additional offence would take place in open court before the same judge who presided over the murder, manslaughter or sex offence trial or, if the offender had pleaded guilty to the killing but none the less refused to say what had been done with the body, before the same judge sentencing for the original offence. The trial of the offence of non-disclosure could take place immediately after the finding or plea of guilty of the killing or sex crime, or later, depending on the facts of the case. There might, for example, need to be a delay while a co-defendant who had pleaded not guilty to the murder, manslaughter or sex abuse, as the case may be, was tried before dealing with the offence of non-disclosure.

The trial of the allegation of non-disclosure should not just be before the same judge who tried the murder or sex abuse case; the judge should try it without a jury. That would be quicker, of course, but would also avoid any deliberate or unwitting bias against the convicted killer or sex offender in the mind of the jury which had only just reached a guilty verdict, or of a new jury which will know of the first and highly prejudicial conviction. It would also enable the judge to be sure that the facts proved to his satisfaction in the first trial could, where relevant to the issue of non-disclosure, be available without re-proof in the non-disclosure trial. There would be a reasoned and dispassionate judgment which explained what the judge had found and why the facts applied to the relevant law led to the verdict of guilty or not guilty.

If there were a verdict of guilty, the judge could then first sentence the defendant for the original offence and, secondly, impose a consecutive sentence for the crime of non-disclosure. If sentenced to life imprisonment for murder, the defendant would be told that the minimum tariff for the murder would be, for example, 25 years and that the determinate sentence for non-disclosure was five years, to run consecutively from the end of the tariff, making a total of 30 years before release on licence could be considered. If the offence merited an extended determinate sentence, the judge would add the two sentences together, making sure that the overall number of years was neither unduly lenient nor manifestly excessive and that the two sentences would run consecutively and not concurrently.

There is no doubt a good deal of procedural and legal detail that will need to be thought through, but I suggest that the scheme I have advanced, if only in outline, better fits the purpose intended but not achieved by the Bill before us. I ask the Government to see whether what I have proposed might not better deal with the very real concerns of those who have so enthusiastically and rightly supported this Bill.