Prisoners (Disclosure of Information About Victims) Bill

Lord German Excerpts

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

[Lord Woolf (CB)]

I have listened to what has been said in the debate so far with considerable interest. I am afraid that I was unable to attend Second Reading, but I have read the transcript of it with particular interest, and I am bound to say that what the noble and learned Lord, Lord Garnier, had to say then was particularly important. I have been helped in my consideration by what has been said in the debate today.

We start off with the fact that anybody who knows victims who have been put in the position of those who were the sponsors of the legislation which we are now considering knows that what they had to go through because they were not able to find out what happened to their deceased relative causes the greatest anguish. They certainly deserve to be protected from suffering any more anguish than is absolutely necessary. The question before us is: what is the best way to achieve the redress to which they are entitled, bearing in mind the practicalities of our criminal justice system?

I was also very impressed by what the noble Lord, Lord Thomas of Gresford, said, and his reference to a Newton hearing. That deserves important attention, because it is a way of achieving the best possible result when this sort of problem has to be considered. The prisoner should know that if he is voluntarily failing to disclose information that he has, there is a risk that he will suffer a substantial increase in the period for which he is detained. That is the most likely thing to produce the result that anyone must hope for. And if that be so, the question is: what is the best way to achieve this in a just manner? It has to be done in a just manner, because if it is not, there is a danger of making the prisoner, quite undeservedly, the subject of some concern and sympathy.

That brings me to the Newton hearing, because I believe this is best left in the hands of the trial judge. I think that the noble Lord, Lord Thomas of Gresford, said the same thing—indeed, so did the noble and learned Lord, Lord Thomas of Cwmgiedd. The judge has been listening to the trial and he knows the facts of the trial, so for him to deal with it is ideal. Otherwise there can be difficulty. What the noble and learned Lord, Lord Mackay of Clashfern, said about the sort of problem that could arise indicates why it could be important for the judge to deal with it. If he told the defendant that he was going to deal with it, there could be a Newton hearing in public, in which the victims would see that the matter had been investigated properly, and have the judge’s knowing response to what was causing them concern.

If at the end of the trial there were any reason for a prisoner to say, “I can’t recall”, or “I can’t give you information because I didn’t deal with what happened at that stage”, people would hear it, and hear the prisoner being questioned and cross-examined about it. The relatives of the deceased, too, would hear that process being conducted, so they would know that it had been fully investigated. If, as I believe would happen in most circumstances, the judge came to the conclusion that the defendant was erecting a smokescreen to try to hide what he was doing, which was so malicious, the judge would find the matter, and in due course it would, as the noble Lord, Lord Thomas of Gresford, pointed out, be taken into account by the Parole Board.

It has been suggested that that should be done much nearer the time of the questioning being considered by the Parole Board—but I suggest that a better time would be not later in the day, when all sorts of other matters can arise to muddy the water, but immediately after the trial. The record on Newton hearings is very good; they have resolved problems where facts have needed to be resolved, and that is a process which can be conducted fairly.

It is also important that the situation should be one where justice has been done. If it is done in the way that would be carried out at a Newton hearing, that would be achieved. Although the amendments put forward so far may not satisfactorily deal with the situation, I suggest that there is plenty of time before the Bill becomes law to achieve what is suggested in the amendment I am addressing, as put forward by the noble Lord, Lord Thomas. I suggest that is the sensible thing. One of the advantages of a Newton hearing is that the procedure which takes place is short and curtailed at the end of the trial.

[Lord German (LD)]

My Lords, I too was precluded from taking part at Second Reading, but I have read the transcripts in Hansard. There are two substantive issues in this group of amendments, and neither of the two sets takes away the required subjectivity of which the Minister has spoken.

The amendments tabled by the noble Baroness, Lady Bull, supported by the noble and learned Lord, Lord Hope, and my noble friend Lady Barker, seek to ensure that the prisoner has the mental capacity to provide the disclosure information required. The Mental Capacity Act 2005 defines mental capacity by saying that

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

It follows that the Parole Board would need to have received the appropriate professional advice that this test of capacity would not apply. If the advice was that the prisoner lacked the mental capacity under this definition, that would be a material fact for the Parole Board to take into account.

It is presumed that the prisoner could therefore not be expected to provide an answer to the disclosure question if the test was not passed. This test is also a relevant issue in the decision to be taken by the Parole Board on grounds of public safety, which of course is the pre-eminent thing that it has to do. Many noble Lords have outlined in debating these amendments that the Parole Board’s task is to determine whether failure to disclose is both deliberate and culpable. These amendments provide more precision for the board to make its decision.

I now move on to the amendments in the name of my noble friend Lord Thomas. They have the intention of providing the Parole Board with an increased level of relevant information on disclosure by including the issues raised by Newton hearings. A Newton hearing may be held where a defendant has been found guilty at trial or has entered a plea of guilty but the issues in dispute which could affect sentencing were not resolved by the verdict of a jury. In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner: in front of a judge. This includes that it can call witnesses to give evidence if required. If the issue is within the exclusive knowledge of the defendant, as is the case with the situations defined in the Bill, they should be prepared to give evidence as well. Where they fail to do so without good reason, the judge may draw such inferences as they think fit. This increased level of information would become available to the Parole Board when taking into account the issue of disclosure in considering parole if these amendments were in place.

At Second Reading in the House, and in Committee today, as mentioned by the noble and learned Lord, Lord Woolf, noble Lords have pressed the Government to make non-disclosure an offence at the time of a first trial. My noble friend’s proposal seeks to take the intention of the words of the noble and learned Lord, Lord Garnier, and put them into an established legal framework. Newton hearings may be a fairly recent legal procedure, but in the matters relating to the purposes of the Bill such a hearing could have a profound effect on the outcome for the victims. Justice is not just a point in time for them; it can last a long time, and for some a lifetime. For victims, coming to terms with their grief, anguish and hurt can last forever. That is why the justice system has to do everything in its power to make this coming-to-terms period as short as possible.

The amendments to this tightly drawn Bill do not determine that there shall be a Newton hearing but simply that, if one has taken place, the Parole Board shall take note of its proceedings, which will provide it with internal and external information—for which I am sure it would be grateful—and will determine whether there was remorse and whether the perpetrator had knowledge of his or her victims that he or she had chosen not to disclose. It may be easier to achieve this disclosure, and hopefully provide solace to the victims, at this early stage.

While these amendments do not require that there are Newton hearings, their inclusion in the Bill would send a powerful message to the judiciary of the significance of such a hearing, particularly its impact on victims, and therefore they might become a regular feature in future—but they are not part of the Bill. I commend these amendments to the Minister and look forward to a positive response to these proposals.

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[The Deputy Chairman of Committees]

Lord Naseby. No? I am not getting a response from the noble Lord, Lord Naseby. If I do not hear any more, I shall move on to the noble Lord, Lord German.

[Lord German (LD)]

My Lords, this amendment, tabled by my noble friend Lady Barker, puts victims right at the centre of the parole functions. The amendment has two major functions: to ensure that victims are contacted, and to provide victims with information about the Parole Board’s hearing of the case of the prisoner’s parole. Much more needs to be done to support victims. The issue of strengthening the victims contact scheme as a whole is important and, while associated with the Bill, is beyond the scope of it. I look forward to the Minister telling us when his root-and-branch review of the Parole Board will take place. “In the fullness of time” was the response we got at Second Reading, and I think we ought to know when full time will be up.

However, there are matters in the Bill that relate to the Parole Board’s functions and to the work it has to do for victims. There are considerations that affect the way the board should engage with victims. First, cannot the system be modernised so that victims’ views can be taken by video link, rather than having to travel in person to the prison where the perpetrator is located? This process can in itself add to the anguish felt by victims who have struggled to come to terms with the grief they have suffered. Sentencing and conviction is just the start of justice for victims. The parole process can easily add to a victim’s pain, and it is essential that everything be done to minimise the trauma this can cause, amplified by the heinous crimes committed, which are the subject of the Bill.

The amendment requires that victims should be contacted as of right. Too often we have heard cases where victims have just not known what is going to happen, and suddenly they find that the perpetrator is released into the community, they have no idea what the conditions were, and they have simply to face up to the fright and misery of that happening. It has to be at their choice that they actually receive the information about the Parole Board’s operations; they have to be given the option to do that. That means we must have an opting out of receiving information: in other words, it is the duty of the Parole Board to give information to victims—to do everything it possibly can to give them that information—and it is the victims’ choice whether they receive that information. Of course, that means that, over time, we would expect some people to say, right at the beginning, “I do not want to hear any more; I do not want to have any more information”. But at this particular point, at the point of possible release into the community, there has to be that option, and contact has to be made as of right.

We know of too many examples of victims finding out the result of the parole process only from media reports, as the noble Baroness just said, from social media or, worst of all—can you imagine?—from reporters calling victims to ask for their comments on the release of the perpetrator. Thus far the service has adopted much more of an opting-in approach to receiving information than an opting-out approach, which I think is crucial in making sure that victims have their rights upheld. For example, I am sure Members will recall the case of Worboys being debated in your Lordships’ House last year, when this matter came to a very important head. Within the narrow scope of the Bill, which leads to only a relatively small number of cases being considered, I do not think this obligation on the Parole Board will place a large administrative burden on its workings. But these Parole Board cases are of great significance to victims, and victims have a right to know what is happening and to have their say should they desire to. They need a consistent infrastructure for exercising these rights. This amendment enables victims to opt out of knowing about and participating in the parole process, but the default position is that they will always be given that opportunity.

With modern technology, keeping in contact with victims is so much easier. Tracing victims if they change their address, telephone number or email will be much simpler and quicker. Governments have databases which can make it much easier to locate people whose contact details have been mislaid. There should be an obligation, therefore, on the Parole Board to maintain the contact details of victims, so that when this time comes, as in the Bill it will do, it is obliged to make sure that the victims understand and know their rights, and that they have a right not to hear anything and to opt out of the information if they so desire. That is what this important amendment would do: give rights to victims that are recorded as being consistent, and which are so important to people who are suffering such misery.

Prisoners (Disclosure of Information About Victims) Bill

Lord German Excerpts

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

[Lord German (LD) [V]]

My Lords, the intention behind this group of amendments in the name of my noble friend Lord Thomas of Gresford is to provide the Parole Board with an increased level of relevant information on disclosure by including the issues raised by so-called Newton hearings.

As many noble and learned Lords have said, a Newton hearing may be held when a defendant has been found guilty at trial or entered a guilty plea but the issues in dispute that could affect sentencing were not fully resolved in the trial and therefore not resolved by the jury’s verdict. In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner, including calling witnesses to give evidence if required, and the defence will also present its evidence. When the issue is within the exclusive knowledge of the defendant, as is the case in the two situations defined in this Bill, the offender should be prepared to give evidence. When they fail to do so without good reason, the judge may draw such inferences as they think fit.

It is this increased level of information that would become available to the Parole Board when taking into account the issue of disclosure when considering parole. I do not see that increasing the level of information made available in any way fetters the discretion of the Parole Board. It just gives it more information on which it can judge the issue.

In addressing the principle of Newton hearings in Committee, the Minister made two points. He said, first, that invariably the judge would take into account the matter of non-disclosure when sentencing and, secondly, that Newton hearings “are not that common.” Putting these two points together, it is clear that the matter is considered but not guaranteed. Very few Newton hearings probe deeply into the reasons for non-disclosure. I venture that this is particularly so after a guilty plea at trial.

In Committee, the noble and learned Lord, Lord Woolf, said that Newton hearings provide a route to

“achieving the best possible result”—[Official Report, 20/5/20; col. 1158]

when non-disclosure has to be considered, and I agree with his analysis. Judges will have heard the facts as laid out in the trial and will have to make a judgment when non-disclosure is an issue. These amendments seek fundamentally to encourage trial judges to use the Newton procedure when the question of disclosure is under consideration. At this stage the maximum influence of the trial judge can be brought to bear on the disclosure question.

This would provide some comfort to victims. The offender’s refusal to provide the information will be public. The “I can’t remember” or “I can’t deal with the situation” answers will have been examined. Victims will see the questioning and cross-examining of the prisoner, hear the answers given and be able to see any signs of remorse. They will see the judge’s skills in tackling the defensive screen that offenders may build around themselves. This public record will be of immense use to the Parole Board in its consideration of the disclosure issue for many years into the future. It will be able to examine and probe the answers given at the time of sentencing with a much greater armoury of knowledge than the original court case might provide, especially if the Newton hearing were to take place following a guilty plea.

The trial judge will have presided over the original trial, and for the same judge to carry out the Newton trial before sentencing is a real help for victims. They know that the judge will have heard all the arguments and is in the best place to discover reasons for non-disclosure. Most importantly, it would provide reassurance to victims that this matter had been dealt with fully and properly and that the justice system was aware of their concerns.

Newton hearings are a fairly recent legal procedure and, as we have heard, only in England and Wales, but in the matters relating to the purposes of this Bill, such a hearing could have profound effects on the outcome for victims. Justice is not just a point in time for them; it can last a long time, and a lifetime for some. For victims coming to terms with their grief, anguish and hurt, it can last for ever. That is why the justice system has to do everything in its power to fully investigate non-disclosure at the earliest possible stage in the process.

These amendments, in this tightly drawn Bill, do not determine that there shall be a Newton hearing but simply that, if one has taken place, the Parole Board shall take note of its proceedings, particularly if the hearing had determined whether there was remorse and whether the perpetrator had knowledge of the victims that he or she had chosen not to disclose.

However, although the amendments do not place a requirement on the judicial system that there be Newton hearings, their passing would send a powerful message to prosecutors of the significance of such a hearing, particularly for its impact on victims. I commend these amendments to the Minister and look forward to a positive response.

[Lord Ponsonby of Shulbrede [V]]

My Lords, this is an interesting group of amendments, and my party will abstain if a vote is called. I listened carefully to the argument from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lords who have spoken in this debate. The noble and learned Lord, Lord Thomas of Cwmgiedd, summarised the situation clearly from my perspective: Newton hearings are, in any event, the least common form of determining facts. The determining of facts is most often done by judges when summing up the case and, if there is a basis of plea, that would be the basis on which the sentence is made. If it is not accepted, there could be room for moving to a Newton hearing.

As the noble and learned Lord, Lord Mackay, said, Newton hearings occur throughout the whole of the English and Welsh system. As noble Lords may know, I sit as a magistrate in London and we occasionally do Newton hearings. They are used as a method of resolving the seriousness of the offence in some cases, but it seems we are talking about a very narrow set of circumstances here. In particular, the judge will have sat through the whole trial in the first place, and it will be for the lawyers on both sides to go through all the aggravating and mitigating factors, including the non-disclosure of a body. Of course, if the judge is not satisfied that that has been gone into sufficiently, they themselves can ask questions of clarification, if I can put it like that, of any witnesses giving evidence. It seems unlikely that this procedure would ever be used, and as such it should not be in the Bill.

A number of noble Lords spoke about calling witnesses again. It could be an extremely traumatic event for some people to have to be called twice to establish the facts of the case. Surely, it would be far better if all the facts—including the reason for the non-disclosure of the body or of the identity of children who have had sexual images made of them—were established in the trial itself, rather than elements of the trial being repeated in a Newton hearing. I will abstain on this amendment for the reasons I have given.

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[Baroness Kennedy of Cradley (Non-Afl) [V]]

My Lords, Amendment 17 is in my name and the names of the noble Baronesses, Lady Barker and Lady Newlove, and the noble Lord, Lord German. I thank them for supporting this amendment. It is a joint effort and builds upon the one tabled in Committee by the noble Baroness, Lady Barker, and the noble Lord, Lord German, which had support across the House and the support of my noble friend Lord Ponsonby. Let me indicate at the start of the debate that if the Minister does not accept this amendment, I will test the opinion of the House.

This amendment adds a new clause, which seeks to put the victims and their families at the heart of the Bill. It is a clause about respect being given to victims and their families by ensuring that there is a process in place, set out clearly on the face of the Bill, where there can be no dispute about people’s rights or the Parole Board’s obligations regarding communications with victims and their families. In explaining why this amendment is necessary, we must consider the reason for this Bill in the first place. To quote from GOV.UK, the Bill

“places a legal duty on the Parole Board to consider the anguish caused by murderers who refuse to disclose the location of a victim’s body when considering release”.

Thanks to the tireless campaigning of mothers such as Marie McCourt, the Government have rightly recognised that not having your child back to give them “a final goodbye”, in Marie’s words, is harrowing and painful and that legislation is needed to get closure for families such as the McCourts and to relieve the anguish that they feel.

This Bill is about alleviating the hurt that non-disclosure of information causes to families and places a duty on the Parole Board to act. This amendment does the same. It seeks to relieve the anguish that victims and their families experience from not knowing information about parole release hearings and places a duty on the Parole Board to act. It cannot be stressed enough how important it is for families to be fully informed and involved in parole hearings about release, and, when mistakes are made in the flow of information communication, how much anguish this causes victims and their families. As I noted at Second Reading, sadly, many parents involved in the Vanessa George case found out about her release on Facebook or via the local newspaper. That is completely unacceptable. I am sure that every effort was made to contact the parents, but the system places the onus on the victims and their families to keep in touch.

This amendment asks for this small group of people to have the right to receive proper, accurate and timely communications and information from the Parole Board. It shifts the responsibility from the victims and their families to the board. At a meeting a few months ago, the current Victims’ Commissioner and the chair of the Parole Board acknowledged that not all victims opted into the victim contact scheme. They noted that this caused distress to those who failed to opt in and who later discovered, through third parties, that the offender had been released. This amendment addresses that concern.

The Minister will say, as I am sure that he did in Committee, that processes already exist for victims and their families to receive information. Yet despite this, as in the case of the victims and families of Vanessa George, some find out about the offender’s release via the media and Facebook. This amendment stops that from happening. It does not stop a prisoner being released, it just sets a duty for the Parole Board to ensure that communications with victims and their families are made, that they are fully informed at each stage of the process and fully aware of their rights. The requirement is to maintain a database, which is not onerous in number, and have it set up within six months of the Bill getting Royal Assent. It allows victims and their families to opt out of receiving information and communications. It is not now the family’s responsibility to opt in. To ensure that this is working as intended, proposed subsection (4) of the new clause requires the Secretary of State to undertake a review of the effectiveness of the Parole Board action and lay a report before Parliament.

Finally, proposed new subsection (5) sets out, so that there is clarity and no dispute, who the relevant persons are and who needs to be communicated with. I hope that the noble and learned Lord recognises the anguish caused to victims by the Parole Board process and by ineffective communication, and will accept this amendment as it seeks to improve communications and the publicity surrounding parole release hearings. I beg to move.

[Lord German [V]]

My Lords, this amendment has two principal functions: first, to ensure that victims are contacted about each stage of the parole application; and secondly, to provide victims with information about the Parole Board’s hearing of the case and about their rights in the course of the application.

The principle of opting out of these two functions is an important change from the current opt-in approach. The amendment seeks to place an obligation on the Parole Board to maintain a database of victims’ contact details, but with victims able to choose not to be on the database and therefore not to receive information. Fundamentally, this provides a right to information which they can choose not to receive if they so wish. In Committee, I sensed that the Minister had some sympathy with these issues. He told us he would be happy to discuss further an opt-out scheme for victims and the provision of improved engagement for victims. I would be grateful if he could tell us whether the proposed meeting on this matter has taken place.

Like other noble Lords, I believe that more needs to be done to support victims. In this tightly defined Bill, that is not necessarily possible, but there are some matters which relate to the Parole Board’s functions where we can act. There are considerations which affect the way in which the Parole Board should engage with victims. In Committee, I raised the importance of the system being modernised. Your Lordships’ House has learnt, if nothing else from this Covid-19 pandemic, to make best use of digital technology. Surely victims’ views can be taken by videolink, rather than having them travel in person to the prison where the perpetrator is located.

Victims will always struggle to come to terms with the grief they have suffered, and sentencing and conviction is just the start of the process. The parole process can easily add to a victim’s pain. Everything that can be done must be done to minimise the trauma it can cause, so opting out is the new right that this amendment provides. The amendment also sets out the information to which victims are entitled. The amendment does not seek to limit the information provided to victims, as proposed new subsection (2)(e) makes clear. For that reason, the review of the amendment’s operation in proposed new subsection (4) is important, as it will ensure that the process, the information and the victim’s rights are as effective as they can be in a situation of such anguish.

The opt-out principle built into this amendment is crucial. There are far too many examples of victims finding out the result of the parole process from media reports, as the noble Baroness, Lady Kennedy, said. I am sure noble Lords will understand that the pain caused by reporters calling victims to ask for their comments on the results of the parole process, when they had no knowledge that it was taking place, is immense. By way of example, Members will recall the case of John Worboys, which was debated in your Lordships’ House.

Within the narrow scope of the Bill, which leads to only a relatively small number of cases to be considered, maintaining the database should not place a large administrative burden on the Parole Board. These parole cases are of great significance to victims; victims have a right to know what is happening and have a right to their say. They deserve a consistent and fair structure for exercising these rights. Modern technology makes keeping in contact with victims much easier. Tracing victims if they have changed address, telephone number or email is now much simpler and quicker.