Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

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

My Lords, this Bill will stipulate in statute an obligation on the Parole Board to ensure that the non-disclosure of information is always considered when making a release assessment. The Bill will put established practice on a statutory footing and respond directly to real-life issues that have caused immense pain to the families of victims of serious crimes.

The Bill, sometimes referred to as “Helen’s Law”, is a result of the work of Helen’s mother, Marie McCourt, who has campaigned tirelessly for this change. I take the opportunity to pay tribute to Mrs McCourt’s resolve. It is in large part thanks to her that we have reached this point.

Helen McCourt was a 22 year-old insurance clerk from the village of Billinge, near St Helens in Merseyside. On the evening of 9 February 1988, Helen disappeared while on her way home from work. The following year, Ian Simms was convicted of Helen’s murder and ordered to serve a minimum of 16 years in prison. Ian Simms has since been released but has never revealed where Helen’s body is and, despite extensive searches, her remains have never been found. This has compounded the unimaginable suffering of the McCourt family.

We will all appreciate the closure and comfort that can come from laying a loved one to rest. The McCourt family, and others like them, have been wilfully and cruelly denied this comfort. Mrs McCourt has campaigned for a change in the law to represent this, to acknowledge the added distress this causes for the families of victims, and there is wide public support for such a change.

I would like to take a moment to reflect on another case which has shaped the development of the Bill. In 2009, Vanessa George was convicted for multiple counts of sexual abuse against children at the Plymouth nursery where she worked. She did not stop at the abuse of the children but photographed these horrendous acts in order to share them with other depraved individuals. Her abuse of the trust placed in her by the families of the children she was meant to care for and protect is truly shocking.

The pain felt by the victims and their families has been compounded by the fact that the children she photographed cannot be identified from the images she produced, and she has hitherto refused to disclose their identities. Many families who placed their trust in Vanessa George do not know, and may never know, if their children fell victim to her cruelty. She was released by the Parole Board after serving 10 years in prison.

When considering the release of an offender like Vanessa George or Ian Simms, the Parole Board must always take into account this withholding of such significant information. That is why we are legislating, through this Bill, to directly address this current gap, and to seek to bring some small solace to victims and families.

Clause 1 will amend the release provisions that apply to life sentences for murder and manslaughter, and sentences of imprisonment for public protection for manslaughter and the offence of taking or making indecent images of children. This places a statutory obligation upon the Parole Board to consider a non-disclosure of information about a victim’s remains or the identity of a victim in an indecent image when making a public protection decision, being a decision to release, about such a prisoner.

Clause 2 of the Bill effectively replicates what Clause 1 achieves but in relation to the release provisions that apply to an extended determinate sentence which has been imposed for manslaughter or the offence of taking or making indecent photographs of children. Functioning in the same way as Clause 1, it will place a statutory obligation on the Parole Board to consider the non-disclosure of information about the location of a victim’s remains or the identities of a child or children featured in indecent images when making a public protection decision, including a decision to release.

In order for the Bill to apply, the Parole Board must not know the location of a victim’s remains or the identity of a victim in an indecent image but must believe that the prisoner has information about this that they have not disclosed to the board. This is the essence of the prisoner’s non-disclosure, and it is this that must be taken into account by the board when assessing whether a prisoner can safely be released on licence.

Furthermore, the Parole Board must particularly take account of what, in its view, are the reasons for this non-disclosure. This subjective approach will enable the board to differentiate between circumstances such as when, for example, the non-disclosure is due to a prisoner’s mental illness, and cases when a prisoner makes a deliberate decision not to say where a victim’s remains are located.

Subjectivity is fundamental to the proper functioning of the Bill. It is for the Parole Board, as an independent, court-like body, to decide what bearing such information has on the risk that a prisoner may present and whether that risk can be managed safely in the community. The Bill reflects the established practice of the Parole Board but goes a step further and puts a legal duty on the board to take the non-disclosure into account.

While, as I have set out, the measures in this Bill may seem relatively small or technical, I cannot stress enough the importance of this Bill and the support it has from victims and families. The crimes of the likes of Ian Simms and Vanessa George are harrowing, and families affected by these crimes deserve the peace of some element of closure, whether that is the opportunity to lay a loved one to rest, or the certainty of whether or not they were abused. This Bill offers families and victims a chance to achieve that.

I hope that the “Helen’s Law” Bill will attract support from all sides of the House and enter into the statute book as soon as possible. I beg to move.

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[Lord Keen of Elie]

My Lords, I thank noble Lords for what has been a worthwhile debate on this important Bill. I hope that families and victims affected by the sort of circumstances referred to will have taken some comfort from the fact that the Bill has made this much progress and has received support from around the House, albeit some noble Lords may feel that it does not go far enough and some may feel that it should look to issues other than those addressed.

The noble Lord, Lord Ponsonby, whom I welcome to his place on the Front Bench, used the word “balance”, which is an important term in the present context. There has to be a balance of the number of issues and interests. I shall seek to address the points raised by noble Lords in as straightforward and clear a way as possible in the time allowed.

The noble Baroness, Lady Kennedy of Cradley, referred to the guidance to the Parole Board. Certain guidance exists at present, but we ensure that that guidance can never move away from the issue addressed by this Bill by enshrining it in statute. There is a question about the status of victims and their views in the context of the Parole Board hearings, and the whole question of how technology may be brought to bear to improve these hearings. The processes of the Parole Board are the subject of review at present, and no doubt these issues will be taken into account.

A number of noble Lords asked about the timescale for that review. In the present circumstances, I can go no further than to say that it will be brought forward in the course of time. I know that that is not terribly helpful in itself. However, I hope that noble Lords will appreciate that we are concerned to ensure that the review is brought forward as soon as reasonably possible, but that there are other pressures on government at present.

On the observations of the noble Baroness, Lady Bull, again, I concur with her observation that to move from a discretion in guidance to a statutory obligation is itself important. It ensures that there is a clear consideration mechanism to be brought in these cases. We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness. Again, the noble Baroness raised the question of review by the Parole Board, which I have sought to address.

My noble and learned friend Lord Garnier suggested that the Bill does not go far enough. I am reminded of the reference made by the noble Lord, Lord Ponsonby, to balance. I will make two observations. We agree that Parole Board decision-making should be transparent and as open as possible, particularly for victims and their families. However, there are good reasons why parole hearings are held in private. Deeply personal and sensitive issues are discussed regarding the offender, the nature of the offence, the victim and the arrangements for the possible release of an offender, including, for example, where they might or might not live, and the licence conditions that apply. Therefore, the parties must be able to speak candidly, and the prospect of information being made public that could compromise the integrity of evidence has to be borne in mind.

We have taken steps to improve the transparency of the parole process. In May 2018 we amended the rules to allow the board to provide summaries of its decisions, in order to provide victims with an indication of what the position had been. That has improved transparency. In July 2019, the new Parole Board rules were introduced. This created a reconsideration mechanism that can be employed by the Secretary of State, and which has been in one of the cases referred to here.

The second issue that my noble and learned friend Lord Garnier raised was a new offence of non-disclosure. We have to remind ourselves that in sentencing, one is concerned with two elements, punishment and prevention, and the Parole Board’s consideration is of course prevention. Where an offender’s main offence is murder, for which a life sentence is imposed, any additional sentence for a separate offence—for example, of non-disclosure—would have to be served concurrently to the life sentence, because it would be a sentence of immediate custody and could not be deferred to commence at the point the judge sets as the minimum tariff for the murder. Therefore, if a separate concurrent sentence were imposed at or shortly after the time of sentencing for the main offence, it would in all likelihood be completed well before the minimum tariff for the original sentence had been completed. In fact, there is no need for a statutory offence, because courts may consider the common law offence of preventing the lawful burial of a body, which is itself punishable by a maximum sentence of life imprisonment.

Therefore, provisions do exist, but in reality it is more reasonable for the sentencing judge to take account of the non-disclosure when deciding on the length of the tariff, and to increase the tariff accordingly when non-disclosure is seen as an aggravating feature of the crime. We can therefore accommodate this under current sentencing policy, and I do not consider it necessary to introduce a new statutory offence. However, clearly, we will keep the application of the Bill under review—a number of noble Lords raised that point. It would be usual for the implications of the legislation, once it has commenced, to be considered after a period of three years. That gives time for implementation by the Parole Board, for the results to be identified and for improvements, if any, to be contemplated; that will take place in this case as well. On the commencement of the Bill, it is certainly the intention that it should be brought into force as soon as reasonably possible after it receives Royal Assent, which would normally be a minimum of two months after Royal Assent. I do not anticipate that being deferred for any material period, and I am not aware of any reason why it would be, so we would hope to see the Bill in force reasonably swiftly.

I turn to the observations of the noble Lord, Lord Kennedy of Southwark, who asked about a short determinate sentence in the case of manslaughter. There, the person would never come before the Parole Board and the Bill, when it becomes an Act, would therefore not apply to them—so I seek to give him that reassurance.

There was also the question of when somebody maintains that they are not guilty, a point raised by other noble Lords as well. That matter clearly comes before the Parole Board. It has to make a judgment about the circumstances and come to a view about whether such conduct is deliberate. It may be a psychological problem or a mental health issue. That is why we cannot have an absolute rule of, “no body, no parole”, as has been suggested on some occasions. Quite apart from anything else such a rule, while it would not take account of somebody who is suffering a mental illness or who simply has a psychological commitment to denial at all costs, would also potentially be in breach of Article 5 of the European Convention on Human Rights. That allows for punishment and preventive elements in a sentence but would not allow for a non-co-operation element. So there are very real concerns that an absolute rule would be subject to successful legal challenge, which is one thing we do not want in this context. Indeed, if there were to be such a challenge it would merely heap further uncertainty on families and victims of crime in circumstances where we can, if we look forward, avoid that.

The noble Lord, Lord Hastings, raised a number of points on sentencing policy. I am not going to address sentencing as it is not the purpose of the Bill, so it is not appropriate to go there. He also raised release from prison during the Covid emergency and referred to the provision for releasing up to 4,000 prisoners—I stress “up to”—who would be due for release within two months. There have certainly been only limited releases under that provision. However, the whole purpose of that policy was to provide head room within the prison population; that is, to allow for capacity demands to be met within it. They have in part been met because, due to the closedown resulting from the Covid pandemic, courts have not been sitting, trials have not been taking place and people have not been committed to prison as a result of sentences. That has reduced the head room within the prison estate by about 2,500. So it is a question of balancing these issues. We must of course have the means to reduce the prison population if that is urgently required, but we are not going to do it as a matter of course. We do not seek to release 4,000 prisoners just because that figure was the upper limit set in the provisions that were referred to. It is there as head room and will be used if required. If it is not required, it will not be used.

Reference was made to the unfortunate administrative error that led to the release of six prisoners who should not have been released. I commend the prisoners in question, who all returned as soon as the administrative error had been identified. One was then re-released, as it were; the other five were not. But to that extent they co-operated.

The noble Lord, Lord Balfe, asked me a series of about 20 questions. I will seek to address some of them. He asked why we need guidance for the Parole Board. It is appropriate that the Parole Board, like any body of that kind, should work within the boundaries of guidance. It is not that we do not trust it or rely on it but, like any such body, it would like to have a rulebook so that it knows the boundaries within which it operates. As I say, we will bring forward the review when we can.

Will the provisions extend to Scotland and Northern Ireland? I believe that the noble Lord, Lord Naseby, also raised this point. These are devolved issues and it is not for us to legislate for Scotland or Northern Ireland in these areas. However, my understanding is that both those legislatures are addressing this issue and they may in turn bring forward their own legislation in these areas. I would add only this: if somebody was convicted in Scotland but then transferred into the English prison establishment and became subject to the Parole Board in England, the provisions of the Act would apply to them. That is the only exception. Otherwise, we would leave it to the devolved Administrations to discharge their provisions as they think fit.

The noble Lord, Lord Adonis, referred to the observations of the noble and learned Lord, Lord Garnier. I hope that I have addressed those to some extent. Clearly, there is the issue of the interests of victims being considered, and I anticipate that that will form part of the ongoing review into the operations of the Parole Board. I take the point that was made by a number of noble Lords about the introduction of technology to improve that whole process. As we see it accelerating in the courts, why should we not see it accelerating with other bodies? Those developments that just a few months ago people thought would take five to 50 years, are taking five to 50 days to implement, which shows what can be done when it is demanded.

The noble Baroness, Lady Finn, talked about a lack of transparency at the Parole Board; I hope I have addressed that to some extent. There is also the question of the Victim Contact Scheme. No doubt experience indicates that that can be improved, and we may have to look at whether it is an opt-in scheme or an opt-out scheme and how it can best be developed with modern technology to ensure that victims and their families are aware—not after the event but before the event—of these processes. I acknowledge the concern expressed on that point.

The noble Lord, Lord Mann, asked what happens when someone is committed to Broadmoor, for example. Their release would be determined under the provisions of the Mental Health Act and would go before the First-tier Tribunal for determination. If they were then referred back into the prison system, ultimately they would become subject to the parole process and to the Act; otherwise, their release from Broadmoor, or from another institution of that kind, would be under the Mental Health Act and not these provisions.

The noble Lord, Lord Naseby, raised a number of points that I hope I have addressed to some extent. In particular, he asked why we rejected the “no body, no release” point. I have sought to reassure him as to why it is appropriate that we should not accept that particular way forward. There is the question of incentivisation, and one of the purposes of the Bill is to make it very clear, not only to the Parole Board but to prisoners, that this is an issue they will have to face when they reach the preventive stage of their sentence and are seeking to be released into the community. But let us remember that there are evil and manipulative people out there, and they will not cease necessarily to be evil and they will not cease to be manipulative, no matter what legislation we seek to pass. We have to be realistic about that. It is unfortunate, but it is true.

The noble Baroness, Lady Barker, who I acknowledge took helpful and appropriate steps to engage with the McCourts after this Second Reading was deferred, raised the question of “no body, no release” as well, and I concur with the point that she made. She also asked how we would monitor the Bill. As I indicated, it is usual after a period of three years for us to look to review the workings of the Act once it is in force to ensure that it is achieving its necessary objectives.

Finally, the noble Lord, Lord Ponsonby, asked a number of questions. On a victims Bill, I cannot express a view as to how and when such a provision will come forward. On the operation of the Parole Board, we know that it will be the subject of further review, but I cannot fix a date for when that review will be available.

As I indicated at the outset, this is a short but fundamentally important Bill and I hope that I have dealt as far as I can with the specific questions raised by noble Lords, which can of course be taken forward for discussion in Committee.

[Baroness Barker]

Will the Minister please write to me about whether this legislation once passed can be used by the families of victims to consider judicial review of decisions to release that have already been made?

[Lord Keen of Elie]

I can answer that now. The Bill will be retrospective to the extent that it will apply to all those currently serving a sentence of imprisonment who are due to come before the Parole Board. If in those cases the Parole Board were to make an error of law by not applying the provisions of the Bill, that would leave it susceptible to administrative action by way of judicial review. But it will not allow families or victims to come forward and seek to judicially review a decision already implemented by the Parole Board for the release of an individual. I hope that makes clear the point the noble Baroness raised. I commend this Bill to the House.

Bill read a second time.

Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

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

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am winding up for the Opposition on this short but very interesting debate. I want to open by addressing the point made by my noble friend Lord Blunkett. He concluded in his support for this amendment that we are asking the impossible of the Parole Board. Although I recognise his immense experience, I question whether that basic assumption is true, and I take up the point just made by the noble Baroness, Lady Barker, that we entrust the Parole Board with these extremely difficult decisions. All the members of the board who I have ever met are extremely responsible people. My understanding of this amendment is that it would require two medical opinions, after which the Parole Board would make its decision, and it is right that the Parole Board should have that responsibility.

My main objection to the amendment is that by making it inevitable in some way that people will find it impossible to get out of prison, they could be tempted to knowingly give wrong information and to do so as a form of torture, if you like, because they know that it will cause more distress to the parents involved. We should not give them that power. We should retain the responsibility and the subjective judgment of the Parole Board in making these difficult decisions.

I also listened to the noble and learned Lord, Lord Garnier, and the response to his points by the noble and learned Lord, Lord Mackay. They are both extremely experienced lawyers. I must admit that I was initially attracted to the solution proposed by the noble and learned Lord, Lord Garnier, but I listened with interest to the objections of the noble and learned Lord, Lord Mackay, and his method of solving the conundrum before us.

This amendment is not appropriate for the Bill, and I think we should pass the Bill as amended. While I acknowledge the point made by my noble friend Lord Adonis questioning whether the Bill is necessary, I think it is right that the practice of the Parole Board is put into statute, otherwise there may be other legal mechanisms of challenging the Parole Board’s decisions if it is adopting this practice but is not supported by proper legislation being in place. On that basis I would reject this amendment. We will consider the other amendments in due course, but largely speaking the Bill should pass unamended.

[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.

--- Later in debate ---

[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.

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[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 ---

[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.

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[Lord Ponsonby of Shulbrede]

My Lords, as the noble Lord, Lord German, has just said, there are essentially two groups within this single group of amendments. The first was introduced by the noble Baroness, Lady Bull, on mental capacity and making sure that the Mental Capacity Act 2005 is properly taken into account in the Parole Board proceedings. I was persuaded by the argument of the noble Lord, Lord Thomas of Gresford, that while we should not do piecemeal reforms of the Parole Board system—I anticipate that the Minister will say there will be a larger-scale review of the Parole Board system—this aspect of the mental capacity of the offenders who come before the board should nevertheless be taken into account.

The noble Baroness, Lady Bull, was very persuasive in her speech. She alluded to my noble friend Lord Bradley’s report, in which he pointed out that it is unknown how many people in our prisons have mental disorders. As the noble Baroness, Lady Bull, said, it should be no surprise that quite a lot of prisoners’ mental capacity deteriorates because of their time in prison, for the reasons she gave in her speech. The other point she made was about dementia. We are often dealing with people on very long prison sentences, and dementia is becoming an ever more real issue. For those reasons, I support the amendments in the name of the noble Baroness, Lady Bull.

The amendments in the second part of this group were introduced by the noble Lord, Lord Thomas of Gresford, who spoke about Newton hearings as a possible way of resolving this conundrum. I have some experience of Newton hearings in a much lower capacity in magistrates’ courts. I regularly have Newton hearings, trying to resolve whatever the issue of the day is. My experience is that, in practice, it is quite difficult to narrow the issues and look just at the issue in dispute in a Newton hearing. It is very often the case that the wider events surrounding the events as a whole are brought into the case, even when one is trying to narrow the issue.

While I understand the suggestion and think it interesting, I am also mindful of the points made by the noble and learned Lords, Lord Mackay of Clashfern and Lord Thomas, that the sentencing judge will have heard the whole case in any event and can explain their view on the reason the offender has not disclosed the location of the body and make it quite explicit whether there is an uplift to the tariff because of the way the offender has behaved. I am open-minded on that point; I have just raised some questions that arise from my own experience in the lower courts.

Nevertheless, these amendments are interesting and constructive. I hope that, when he comes to reply, the Minister will treat them in that way.

[Lord Keen of Elie]

I thank noble Lords and noble and learned Lords for their contribution to the debate prompted by these amendments. I begin with a number of general remarks which may well be familiar to noble and learned Lords, but perhaps not to everyone.

I believe there was a reference at one stage of the proceedings to early release, and I emphasise that we are not dealing here with any issue of early release. As I mentioned in response to observations from the noble Lord, Lord Adonis, we are generally dealing with a life sentence or extended sentence, and when we come to look at that, we can identify two elements—in what I shall refer to as a life sentence. There is the punitive element, which is the tariff fixed by the court, and a preventive element, which is the issue addressed by the Parole Board in the context of public protection. The Parole Board’s role comes into play only at the end of the tariff—the punitive element of the sentence—at which point the Parole Board has to determine whether there should be a continuation of custody or a release under licence, having regard to the public protection test.

The noble and learned Lord, Lord Thomas, was quite right in observing that in most, if not all, of these cases, the judge will have made findings in fact that will address, among other things, whether there has been disclosure of a victim’s whereabouts. If that becomes an issue, there is scope for what is termed a Newton hearing. But generally, the trial judge—whether after plea or after trial—will be in a position to make findings in fact on that issue, and to then reflect those findings in fact in the tariff he imposes upon the individual in question when applying the punitive element of the sentence. I emphasise that because the noble and learned Lord, Lord Thomas, made the point that there should not be punishment again. That is quite right: it is not the role of the Parole Board to punish. The role of the Parole Board is to determine, by reference to the public protection test, whether at the expiry of the tariff it is appropriate for an individual to be released from custody, albeit under licence.

That takes me to an observation of the noble and learned Lord, Lord Hope, who asked whether the object of this legislation is to delay release as a punishment. The answer is clearly no. The issue being addressed is in the context of public protection, and whether the failure to disclose indicates to the Parole Board that there is a very real and material question about public protection, and whether someone should be retained in custody. Indeed, if the object of this legislation was to punish, it would potentially be in breach of both Article 5 and Article 7 of the European convention. I stress that this is not the object of this legislation at all.

I turn specifically to the amendments tabled—first, to those in the name of the noble Baroness, Lady Bull, which really have two limbs. The first is covered by Amendments 2, 7, 10, 13 and 16, and the second by Amendment 4 and subsequent amendments. The first limb would ensure that the Bill’s provisions apply only to prisoners who are “able” to disclose relevant information about the location of a victim’s remains but had not done so. The second limb would particularise a prisoner’s mental capacity as one of the possible reasons for non-disclosure.

The Bill in its current form affords the Parole Board a wide scope to subjectively consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, an independent judicial body with experience of assessing risk and evidence, sufficient flexibility to take all circumstances into account when making a determination about non-disclosure, including the ability, whether mental or physical, of an offender to disclose.

The amendments as drafted would confine the operation of the provisions to prisoners deemed able to make such a disclosure but who had not done so. However, there may be cases where an offender has had ample opportunity to co-operate with the police or the authorities over many years to reveal a victim’s whereabouts but has refused to do so. If such an offender later became unable to disclose—by reason of age or mental illness, for example—the provision of these amendments would not apply to that offender and the board would be unable to consider a previous refusal to co-operate in its assessment of that prisoner’s risk, yet these previous persistent refusals may well be considered as reflecting quite materially on the risk that the prisoner posed to the public in the event of release on licence.

The current Bill avoids such difficulties by allowing the Parole Board to consider all possible reasons in its view to explain non-disclosure, including considering historical refusals. That flexible approach is underlined by Clause 1(3), which makes clear that the imposition of the statutory duty does not in any way limit other matters that the board must or may take into account when conducting such an assessment.

The existence of mental health difficulties or a lack of mental health capacity would doubtless be a relevant circumstance to be taken into account, but there would also be other relevant circumstances. By not specifically referring to particulars in the Bill, we are not giving some more significance than others; we are instead allowing the Parole Board to use its expertise in how it approaches such cases. It is therefore for the board itself to take a subjective view of what the reasons might be, and then it is for the board to decide what bearing that information may have on the subsequent assessment of suitability for release, which is the relevant test that the Parole Board has to address.

We have deliberately avoided any delineation in the Bill of what the reasons for non-disclosure may be, to preserve this flexible and subjective approach. Noble Lords have correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure but there may also be other reasons, such as, as I mentioned, geographical change, mental impairment or issues of mental capacity that may not have occurred at an earlier point but will still be relevant to a current assessment. In these circumstances, I will be inviting the noble Baroness to withdraw this amendment.

I move on to the amendments tabled by the noble Lord, Lord Thomas of Gresford, which specify that where a Newton hearing has been carried out to ascertain certain disputed facts—generally where there has been a guilty plea, but it may take place after a trial—that should be considered by the Parole Board. The short point that I would make is that these are matters that it will be within the competence of the Parole Board to consider, and the board can call for all material pertaining to sentencing, including the terms of any Newton hearing that may have taken place. I apprehend that what the noble Lord may have in mind is perhaps to encourage judicial activity when sentencing in these cases to ensure that they address the non-disclosure of the whereabouts of a victim. However, as the noble Lord, Lord Thomas, observed, that is something that will invariably be taken into account by a trial judge in fixing a tariff for the sentence that he is going to impose.

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[Lord Thomas of Gresford]

My Lords, I am very grateful to the Minister for his reply, but I think it is necessary to distinguish where there has been a plea of guilty and where there has been a plea of not guilty in a trial. Very often, when a person pleads guilty, he will, with the assistance of his legal team, put together a basis of plea, which is handed to the prosecution for consideration. If it accepts the basis of plea, there is no problem but, if there is an issue, a Newton hearing will be held to determine whether the prosecution which refuses to accept the basis of plea is correct or whether the defendant who is pleading guilty is correct. The judge will sentence accordingly.

That is one situation. Another is after a trial, when there has been a finding of guilt. Let us take a circumstance where a group of people have attacked an individual and one of the group says, “I didn’t take part”—indeed, I remember a case where precisely that happened; the defence was, “I was trying to discourage them so they’d go away”—but, at the end of the trial, the defendant is found guilty. At that point, the judge says, “I will sentence you on the basis that you are withholding information as to where the body was buried.” The defendant could then say, “I’ve been found guilty, but the others took the body away and I want to be heard on that, because I don’t know where they went and where the body was ultimately buried. You cannot sentence me on the basis of the facts the jury has found—that I was a party to a killing—when I don’t know where the body went.” That situation does not involve mental incapacity at all and such a situation should be investigated at the time and not 15 or 20 years later by the Parole Board doing its best, unassisted by medical evidence because it would not arise. It seems to me that issues of that nature should be determined prior to sentencing for the actual offence, whether there is a plea of guilty or a finding of guilt. That should involve a hearing of the sort that I have proposed.

Obviously, my amendment does not require the Parole Board to order a hearing. As the Minister anticipated, my purpose is to encourage the holding of Newton hearings where necessary. I do not believe that they are quite as rare or unusual as he suggests. In this particular instance, with proper directions being given generally to judges to hold Newton hearings where appropriate, they would be useful and helpful to the board’s ultimate determination. They would be of great significance concerning culpability.

[Lord Keen of Elie]

My Lords, I accept what the noble Lord, Lord Thomas, has observed. In cases of this kind, the judge will wish to take into account the disclosure or non-disclosure of the whereabouts of a victim and the circumstances in which the offender can or cannot make that disclosure. There may be circumstances in which that might necessitate a Newton hearing, and so be it. That would be done contemporaneously with the determination of the tariff in the sentence. When later on we get to the preventive element after the tariff has been served, the Parole Board will be able to call for all that material, whether it be a Newton hearing or otherwise.

I hear what the noble Lord, Lord Thomas, has to say about the importance of determining these issues at the time of trial and sentence; I do not disagree with him at all. It may be that some element of encouragement will be given if it is required, although I take from the observations of the former Lord Chief Justice—the noble and learned Lord, Lord Thomas—that there may be little requirement to encourage in a matter that is dealt with in this way day in and day out.

[Lord Hope of Craighead]

My Lords, I refer the Minister to his remarks about historic refusals. Reading proposed new subsection (1)(c), I do not get the impression that it is talking about historic refusals and I do not think that anything in the noble Baroness’s amendments would cut the ability of the board to look at them. What the opening words of the subsection are talking about is a situation where the board

“believes that the prisoner has information”—

talking about it in the present tense so that the board can consider it in a situation where it thinks that the prisoner is able to do something. That is where the words suggested by the noble Baroness would fit in very well.

Would the Minister like to reflect carefully on exactly what subsection (1)(c) is talking about and reconsider his point as to whether these amendments would cut out historic refusals, which would be highly undesirable, of course?

[Lord Keen of Elie]

It does appear that the amendment has that effect even it was unintended. I will give the matter further consideration, as invited to by the noble and learned Lord.

[Baroness Bull]

My Lords, I am grateful to the noble and learned Lord, Lord Keen of Elie, for his comments and I have listened carefully to his response. I also express my gratitude to all noble and noble and learned Lords who have spoken in support of my amendments. Aside from generously sharing his considerable expertise with me in advance of today’s debate, the noble and learned Lord, Lord Hope of Craighead, helpfully extended my arguments to include the possibility that the convicted prisoner is not in fact able to disclose the information because, despite the findings of the court at trial, they are innocent. One hopes that this is rarely the case, but of course history shows that it can indeed be so.

I am also grateful to the noble Baroness, Lady Barker, who sounded a useful warning about the general understanding of the Mental Capacity Act and concerns about the extent to which it is drawn on and applied within the prison environment. She raised an important question about training for practitioners in the criminal justice system, including members of the Parole Board, in applying the provisions of the Act. The Minister responded to a point about competence, but I am not sure that he responded to the point about training more broadly to enhance understanding of the Act within the criminal justice system. Perhaps he would write to us on that point.

The noble Baroness, Lady Watkins, spoke from her position of vast experience, including in Broadmoor, and reminded us that medical personnel are usually well able to distinguish between genuine mental disorders and what was referred to earlier as “guff”. Her views of course bear considerable weight here.

I am grateful to the Minister for addressing the two limbs of my amendments in so much detail. Like the noble and learned Lord, Lord Hope, I was confused by his point about previous refusals not being taken into account. I am grateful to him for agreeing to reflect further on that, in response to the noble and learned Lord’s further comments. He argued that state of mind and/or mental capacity are just one of several reasons why disclosure might not be possible. However, given what we have heard today from the noble Baroness, Lady Barker, about understanding the Mental Capacity Act as it is applied within the criminal justice system, and the potential for the infringement of human rights, I contend that there is justification for expressly including this reason in the Bill.

The noble Lord, Lord Kennedy of Southwark, set out very clearly the difficult balance between the rights of a grieving family, who have been by extension the victims of a heinous act, and the rights of a prisoner, convicted of that crime but who suffers a mental health disorder or who, for whatever reason, lacks the mental capacity at the time of the Parole Board hearing to disclose the information requested of him. I know that every noble Lord who has spoken today is acutely aware of this tension and of the importance of this Bill, not just in putting the needs of victims at the centre of the justice system and helping grieving families to achieve closure but as part of a wider and necessary process to increase the efficiency, transparency and accountability of the parole system.

My amendments do not seek to alter the intention of the Bill in any way. As the noble Lord, Lord German, pointed out, neither of the amendments takes away the subjective capacity of parole boards. They simply seek to add clarity through the insertion of the words “is able to, but”, and an explicit reference to consideration of mental capacity. I continue to believe that these simple amendments would support the Parole Board in the fulfilment of the new statutory duty that the Bill places on it by enshrining in law what government has already accepted: that parole boards need to take state of mind and mental capacity into account. This would empower them to do so with confidence and consistency.

I am very grateful to the noble and learned Lord for considering the amendments. I am disappointed that he has not been persuaded by my arguments and those of other noble, and noble and learned, Lords. However, for the time being, I beg leave to withdraw the amendment.

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[Lord Keen of Elie]

My Lords, I thank noble Lords for their contributions to the debate on the amendment, and I thank the noble Baroness, Lady Barker, for her submissions on it. In the context of the Bill, we are dealing with particularly disturbing forms of crime and particularly disturbing consequences. However, we must have regard to all victims of crime, not just of these crimes, in determining the appropriate step to take in order properly to take account of their views, interests and concerns.

Processes are already in place, by virtue of the Parole Board rules, the victims’ code and the Domestic Violence, Crime and Victims Act 2004, that address the issues referred to in the amendment. Both the National Probation Service and the Parole Board communicate information to victims, and where a family member is affected by an offender’s action, they too, of course, will be victims and will be contacted. Where a victim wishes to receive information, this will be provided by their victim liaison officer. Victims can receive information regarding the date of a parole hearing and the outcome of a review. Indeed, they may request a summary of a Parole Board decision and can also provide a victim personal statement to the Parole Board to explain the impact of the crime upon them. They have the right to request that certain tailored licence conditions be applied.

Victims are also informed of the avenues for making a request for reconsideration of a decision. Such reconsideration will be carried out by the Secretary of State. Following a request for reconsideration, they will receive reasons why their request was or was not successful. Thereafter, a victim liaison officer will provide information regarding judicial review, if that is requested.

In recent times—I note the reference to the Worboys case—the National Probation Service has improved the way in which it communicates with victims, such as using email or telephone as opposed to letters, while being mindful of the victim’s preferred method of contact. We have also tightened processes to ensure that victims are informed of developments, such as being notified of the date of oral hearings, in a timely manner. We have expanded the criteria for victims who are eligible for contact under the National Probation Service Victim Contact Scheme. We are trialling a new process whereby all eligible victims are referred directly to probation to reduce the risk that they are not offered use of the victim contact scheme directly. Therefore, we have taken steps to improve the system. However, the Parole Board is an independent body and it requires a degree of flexibility in how it operates. To impose these statutory obligations on the Parole Board, and the Parole Board alone, would, I suggest, be going too far.

I hear what is said about the idea of an opt-out rather than an opt-in scheme for victims and what is said about the need to improve the involvement of victims, particularly those in the present category. I will be happy to discuss that at a meeting, as suggested by the noble Baroness, Lady Kennedy, before the next stage of the Bill. However, I also note that there is a proposal for a review of the Parole Board. I cannot give a precise date for that review but, again, I will be happy to take that up in discussions with the noble Baroness, Lady Kennedy. At this stage, however, I invite the noble Baroness, Lady Barker, to withdraw the amendment.

[The Deputy Chairman of Committees]

My Lords, no noble Lords have indicated a wish to speak after the Minister, so I now call the noble Baroness, Lady Barker.

Prisoners (Disclosure of Information About Victims) Bill

Lord Keen of Elie Excerpts

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

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Bull, very much for moving her amendment. In Committee, I supported the amendments. I also echo the support of the noble Lord, Lord Bradley, who contacted me personally to say that he very much wishes he could have been here to support the noble Baroness’s amendment.

It must be said that a number of extremely eminent lawyers have, in essence, spoken against the amendment moved by the noble Baroness, Lady Bull. My response to those eminent contributions was best articulated by the noble Baroness, Lady Barker. My experience is that many different parts of the criminal justice system do not understand mental capacity legislation properly and that, even if they do, it is often not used to its full extent. That is because such a large proportion of the people we deal with in the criminal justice system as a whole have mental capacity issues.

I support in principle what the noble Baroness, Lady Bull, has said; I understand that she will not press her amendments to a vote. I hope that the Minister will say something more constructive about addressing the perceived gap in the legislation regarding further review by the Parole Board and the practicality of a possible remedy through judicial review. These are all active issues which have been explored in our debate. The Minister should acknowledge that the concerns raised are real and explain to the House why it would not be necessary to meet them in the Bill.

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

My Lords, I thank the noble Baroness, Lady Bull, and other noble Lords for their contributions to this debate. Perhaps I may reiterate the position of the Government, which is that we consider that the amendments would unnecessarily fetter the discretion of the Parole Board. I do not accept that there is a gap in the legislation, as suggested by the noble and learned Lord, Lord Hope of Craighead.

I shall initially address Amendment 1 and related Amendments 5, 8, 11 and 14, which would ensure that the Bill’s provisions applied only to prisoners who are, or have previously been, “able” to disclose relevant information but have not chosen not to do so.

The Bill affords the Parole Board wide scope subjectively to consider the circumstances of a prisoner’s non-disclosure. The test is broadly drafted to give the Parole Board, which is after all an independent judicial body with experience in assessing risk and evidence, sufficient flexibility to take all relevant circumstances into account when making a release assessment.

The board must be satisfied that the offender no longer poses a risk to the public, and this high bar can be met only after it considers all elements of an offender’s case. This already includes an offender’s current and past “ability”, whether mental or physical, to disclose such information. The Parole Board may already consider all possible reasons, in its own view, for any non-disclosure, including historic refusals.

There is some uncertainty as to the meaning of the term “able” in these circumstances, and it would be unclear what criteria the board would use to make their determination. In many cases, there are varying degrees of ability, or varying degrees of information, that the prisoner can disclose, and the interpretations of ability in each case will differ—a point made by a number of noble Lords. The Parole Board in its current practice uses a flexible approach to take into account all elements of a non-disclosure. To use “able” in a determinative and inflexible way would cause unnecessary confusion and potential inconsistencies in its application. That has the potential unfairly to prevent the board when applying the Bill’s provisions from considering a non-disclosure by an offender in many circumstances; for example, the case of an offender who had rendered themselves “unable” to disclose due to illicit drug use in prison. There are clearly other examples of how that difficulty could arise.

By specifically avoiding reference to particulars in the Bill, we are deliberately not limiting the board’s ability to use its expertise in how it approaches such cases. I say in response to a point made by the noble Baroness, Lady Bull, that the Parole Board is possessed of considerable expertise in these areas, including that of mental health.

That leads me on to Amendments 2, 6, 9, 12 and 15, which would explicitly direct the Parole Board to take into account one possible reason for non-disclosure; namely, whether the prisoner has or had the mental capacity to disclose information. The Bill places a broad statutory duty on the Parole Board to take into account non-disclosure on the part of a prisoner and, in doing so, it must consider all the reasons for such non-disclosure. It is therefore for the board itself, as now, to take a subjective view of what those reasons might be, and then it is for the board to decide what bearing this information may have on its subsequent assessment of suitability for release. I remind noble Lords of what is provided for in Clause 1(2)(b), which states:

“When making the public protection decision about the life prisoner, the Parole Board must take into account … the reasons, in the Parole Board’s view, for the prisoner’s nondisclosure.”


That wide remit clearly would embrace all the issues that have been touched on in the debate.

The noble Baroness correctly identified that a prisoner’s mental state is likely to be a significant factor in assessing reasons for non-disclosure. However, we do not believe that there is any material benefit in referring to this as a possible reason for non-disclosure in the Bill, as the Parole Board will take all relevant factors into account when assessing a prisoner’s suitability for release. If one factor were to be explicitly stated, it could be asked why other reasons for non-disclosure are not also placed on a statutory footing, such as a geographical change that prevents the location of a victim’s remains being identified or circumstances where mental impairment does not amount to “mental capacity”. As one noble Lord observed, there may be cases where people have simply forgotten or decided to blank matters out of their mind over a period of many years. Clearly, the noble Baroness does not wish to preclude any other relevant factors, but any delineation of what the reasons for non-disclosure may be in order to preserve a flexible approach takes away from the subjective approach that we invite the Parole Board to take. This approach is expressed in Clause 1(3), which states:

“This section does not limit the matters which the Parole Board must or may take into account when making a public protection decision.”


It is for the board to take these matters into account when conducting its assessment.

There are significant practical difficulties in attempting to give examples on the face of the statute, which could lead to unnecessary confusion. That is why a decision as to mental capacity is one of many that would have to be considered. However, the board is bound by public law principles to act reasonably in respect of all decisions it makes. A decision where a relevant mental capacity issue was not taken into account would clearly be amenable to challenge by judicial review. That is why we believe that the more sensible approach is to leave these matters to the considerable expertise and experience of the Parole Board and not to attempt to take one or two factors out of context and place them in the Bill.

I say in response to one or two points raised in debate that the Parole Board already has expertise available to it in dealing with matters of mental capacity. We are not moving away from the current guidelines; we are essentially expressing in statutory form that which can be found there already. The noble Lord, Lord Balfe, asked whether the matter would go to Strasbourg. I simply draw his attention to the certificate given by the Lord Chancellor and Secretary of State for Justice pursuant to Section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with convention rights.

I acknowledge the concern expressed about mental capacity. I reiterate our view that that is well embraced by the broad terms of the Bill. I therefore invite the noble Baroness not to press her amendments.

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[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.

[Lord Keen of Elie]

I thank all noble Lords for their contributions to this debate. The Government remain of the view that these amendments would place too much emphasis on findings of mental capacity at a Newton hearing, particularly the findings made for the purposes of sentence.

In sentencing an offender, it is for the court to consider the punitive element of an offender’s sentence and, in doing so, to take into account the failure to disclose information in setting the tariff. By reflecting this in the sentencing remarks, victims can be assured that due consideration has been given to the non-disclosure. Tariffs must be served in their entirety and irrespective of any disclosure of information after a trial, so the tariff cannot be reduced because of subsequent disclosures. This is an entirely sensible approach, as I believe the noble Lord, Lord Thomas of Gresford, acknowledged when we discussed this matter in Committee. The trial judge is more able to determine the appropriate weighting with regard to non-disclosure when setting the tariff.

On the other hand, the Parole Board’s role is in relation to the preventive element of the sentence. The consideration that the Parole Board must make is whether there should be a continuation of custody or a release on licence if the offender’s risk can be safely managed in the community. The Bill places a statutory duty on the board, when making that wider assessment, to consider the non-disclosure of information by an offender and the possible reasons for it. The board will take a subjective view of what those reasons might be, and what bearing this information may have on the subsequent assessment of suitability for release. When it comes to consider these matters, it must of course take account of the judge’s sentencing remarks. Those, in turn, will be informed by such issues as non-disclosure. I am obliged to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his detailed analysis of how the court approaches these matters in practice and why, in the context of the Bill, it would not be appropriate to simply import the notion of the Newton hearing for the purposes of the Parole Board’s determination.

The noble Lord, Lord Thomas of Gresford, has correctly identified that a prisoner’s mental state may be a significant reason for non-disclosure—a point made earlier by the noble Baroness, Lady Bull, when she spoke to her own amendments. But to limit this to the specific context of a Newton hearing, and to place that in the Bill, appears to us to be too narrow an approach. The Parole Board should be free to consider all reasons, including those that may arise as a result of a Newton hearing—unusual though they may be—and we should therefore avoid any specific delineation in the Bill.

As new subsection (3) in Clause 1 makes clear, the breadth of matters which the board may take into account is, essentially, as wide as possible. In addition, the board is bound by public law principles to act reasonably in all decisions, so a decision where a relevant Newton hearing or an issue of mental capacity was not taken into account could be subject to judicial review. I venture that this is not the Bill in which to approach the whole issue of sentencing guidelines or findings of fact for the purposes of those guidelines. That is already accommodated, and it is in these circumstances that I invite the noble Lord to withdraw his amendment.

[Lord Thomas of Gresford [V]]

My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.

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[Lord Ponsonby of Shulbrede [V]]

My Lords, I support the amendment and I support my noble friend Lady Kennedy of Cradley. She set out very clearly the reasons for the amendment, and the majority of speakers have supported her. I found the speech of the noble Baroness, Lady Newlove, particularly moving. She spoke from the heart, as always, and, sadly, she spoke from bitter experience. It was particularly interesting that she talked about the practicalities of getting information from the Parole Board, even when you are very well known to the board as a victim.

My noble friend’s amendment would put in place an opt-out rather than an opt-in system, and the various elements of that are specified in the amendment. The arguments against the amendment made by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Naseby, was: that is all very well, but why are these victims different from the other victims within the whole of the criminal justice system? The noble Baroness, Lady Barker, made the point very clearly: the reason they are different is that they continue to be victims because of the non-disclosure of the information.

There are roughly only 100 such victims in the country. I hope that any review of the work of the Parole Board will look at making a much wider opt-out system available in the future, but, now, we have the chance to legislate to address the concerns of this very particular group. The Parole Board has a heavy weight of responsibility but this is an opportunity for the House to make a tangible difference to these victims’ lives, and it should seek to do so. I support my noble friend.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I quite understand the concern that has been expressed about the victims of crime and the victims of these particular crimes.

Perhaps, first, I may make a number of rather technical points in relation to the scope of the amendment. Subsection (1) of the proposed new clause does not apply to those receiving a determinate sentence for the offences contained in the Bill. However, I am confident that the amendment was meant to apply to all sentence types, and I will proceed with my remarks on that basis. Additionally, “relevant persons”, as defined in proposed new subsection (5), would include offenders beyond the scope of the Bill—namely, all those convicted of murder or manslaughter—rather than being restricted to the circumstances set out in the Bill. Again, I will proceed with my remarks on the basis that this was intended to be confined to offenders to whom the Bill applies.

I turn to the substance of the amendment. First, it would require the Parole Board—I emphasise: the Parole Board—to create and maintain a database of victims’ family members in cases captured by the Bill. The board would have to remove a family member from the database if they did not wish to be included. Secondly, it would create an obligation on the Parole Board to provide information to certain groups of victims and, indeed, suspected victims and their families.

This amendment effectively replicates some elements of the victim contact scheme for a limited group of people, and places the duty on the Parole Board to administer it rather than the National Probation Service. With respect, the Parole Board is not equipped for such a function. There is already a well-established process delivered through the victim contact scheme to provide victims with information about the date and outcome of parole hearings, and they can request a summary of the Parole Board decision. This process also facilitates victims requesting the imposition of specific licence conditions for the offender’s release, such as exclusion zones, and assists them in submitting a victim personal statement which will be considered by the Parole Board panel. The Government see no justification for replicating the excellent service provided by the victim contact scheme for a particular group of victims’ families in a limited way.

Proposed new subsection (2) of the amendment proposes an unfettered right to

“information pertaining to the application”,

which may include confidential information relating to the offender, such as police intelligence, which may breach the offender’s confidentiality rights and put their safety at risk. The Parole Board must balance the rights of victims with the rights of the offender.

If there is any suggestion that the parole decision is legally or procedurally flawed, victims may ask the Lord Chancellor to consider making a reconsideration application on their behalf, and the Lord Chancellor can ask the Parole Board to look at the decision again. Victims will receive a detailed letter setting out the reasons why the request for reconsideration was successful or unsuccessful. The victim liaison officer will provide information regarding judicial review if requested.

There are significant practical difficulties in operating such a scheme on the opt-out basis suggested by this amendment. The Parole Board would need to ensure that the correct contact details for each victim are recorded; if a victim does not respond to the offer of contact, it would not be appropriate simply to send updates to a last known address, for example. This amendment would duplicate much of the work delivered under the victim contact scheme but could not replace it entirely. That means that victims would have to receive contacts from and share information with both the Parole Board and the victim contact scheme, which would in turn add to their distress at a potentially very difficult time.

We are currently trialling a new process whereby all eligible victims are referred directly to the National Probation Service, to ensure that they are all offered access to the victim contact scheme directly by it, thus ensuring that we reduce the risk of victims opting out before they are clear about the benefits of the scheme. The new process also incorporates a standard referral form that provides the service with the address, telephone number and email address of victims to allow for multiple methods of contact.

We recognise that receiving information about parole hearings is of great importance to many victims, and we endeavour to support them through the existing victim contact scheme. We consider that this support is far better delivered by the National Probation Service than by being placed on the shoulders of the independent Parole Board, which, as I indicated, is not equipped to carry out such a service.

The amendment also contains a requirement to review the database’s use within one year of its creation. However, as some noble Lords observed, cases such as those detailed in this Bill are extremely rare and it is unlikely that a review after one year could result in any significant, reliable findings.

I emphasise that we are concerned with the position of victims. They are provided with information under the victim contact scheme, which is administered by the National Probation Service. The victim liaison officer will provide information to those who wish to receive it. Where the Parole Board considers or reconsiders a case, victims will receive a detailed letter setting out the reasons why, for example, a request for reconsideration was successful or unsuccessful. We are ensuring that the victim’s personal statement comes before the Parole Board when it has a hearing. We plan to enshrine support for victims in a victims’ law, as we have indicated, but before we do this we will revise the victims’ code to give them more clarity on their rights around access to support and greater flexibility over when and how a victim personal statement can be made.

The noble Lord, Lord German, referred to engagement on this matter. I can indicate that my honourable friend Alex Chalk, the Minister with responsibility in this area, has been endeavouring to arrange a meeting with the noble Baronesses, Lady Kennedy and Lady Barker, to discuss this matter. I do not know whether they are aware of that, but I am advised that this is in train, if I may put it in those terms. In these circumstances and, in particular, having regard to the distinctive role of the Parole Board on the one hand and the National Probation Service on the other, with respect to the victim code, I invite the noble Baroness to withdraw this amendment.