Prisoners (Disclosure of Information About Victims) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, my noble friend who proposed these amendments has been well known to me as a very clear, well-informed campaigner for many years in a number of different situations. I am also very conscious of the tremendous pain that is felt by a family who have lost a loved one in circumstances where they are unable to come to closure because they do not have the body of their loved one. However, we have to look at this carefully and that is what I suggest we do.

These amendments deal with a situation in which the prosecuting authority did not have access to the victim’s body in a murder or manslaughter case. In former times, it was difficult to secure a conviction in such a case, but prosecutors’ powers and the means of investigation at their disposal has enabled success in such cases to be easier now. Where a prisoner has pled not guilty and persistently proclaimed his innocence, it will not be consistent with his position to give such information. The circumstances in which such information might not be available are many. It might be impossible for him to know what happened to the body, for example if he was not a principal in the case, but an accessory who gave the lethal weapon to the perpetrator at some distance from the scene, or he was not the person who took charge of the body after the crime and had no knowledge of what was done with it. These are just some of the circumstances in which what happened to the body might not have been known to the prisoner and where the Parole Board cannot know or have a reasonable suspicion that he did. Yet, in each of these circumstances, the family’s pain is the same as if he did know. The result is that it is not always possible to find a just retribution for that pain.

The fact that the prisoner would not disclose the fate of the body would be known and would be a consideration at the time of the sentence. Co-operation with the police in their inquiries is a relevant factor in the determination of a sentence. This would be an important element in that aspect of the sentencing decision. The extent of the prisoner’s involvement would be much more freshly known at the time of the Parole Board hearing.

The Parole Board’s function in making its decision is to consider whether it is satisfied that it is no longer necessary for the prosecution of further protection of the public that the prisoner should be confined. In my submission, it would be utterly contrary to that duty to refuse release, as proposed in the amendment, without any discretion to the Parole Board. I therefore object to the amendment and oppose it. To require the board to consider this matter, thus to commit it to the board’s discretion, is a wise and just way to recognise the severe pain inflicted on the family of the victim in the circumstances disclosed. The prisoner will know that this is to be considered and that this situation is unlikely to be a factor in his favour, so he might be encouraged to disclose what he knows.

In my view there are serious difficulties in making this matter a separate legal offence, as was proposed by my noble and learned friend Lord Garnier, for whom, as a lawyer and otherwise, I have the greatest respect. This is a matter that would be difficult to disentangle from the jury’s verdict on the murder—and the last thing we want is two different verdicts on the same case by different juries. However, I do not need to elaborate on that today, because that is not what is proposed. I conclude by emphasising the fact that I do not consider this a just way of dealing with a very painful problem.

Prisoners (Disclosure of Information About Victims) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I find difficulty with these amendments, and I will look carefully at the detail to understand exactly what is involved. As a Scottish lawyer, I was brought up in the Scottish system, where Newton decisions are utterly unknown. Since training in the law of Scotland, I have acquired a certain amount of familiarity with the law of England and Wales, and I have come across these Newton hearings, and indeed the judgment of the noble and learned Lord, Lord Judge, in the case which has been cited, and the explanation he gives for having them.

It may be wise just to look a little bit further into the detail which is required or which requires a Newton hearing. In the law of Scotland, the indictment of a serious offence requires the detail of the offence to be set out. If the accused wishes to plead guilty, he has the option to plead guilty to the indictment as served, or to plead guilty with items in the indictment which are matters of detail deleted. The prosecutor then has the option either to accept that plea, which will be of the offence with the details as agreed by the accused, or to proceed to trial. However, there is no room then for difference of opinion at the sentencing hearing about what the detail of the offence was, so there is no need for anything resembling a Newton hearing.

In England and Wales, the situation is somewhat different in that an indictment requires a description of the offence which does not, or may not, involve the same degree of detail. Therefore, the Crown may accept a plea of guilty from the accused when there is in fact quite a difference between them as to the detail of the offence, and that difference may make all the difference in the world to the seriousness of the offence. Therefore, when the question comes up for sentence, the exact amount of detail and what the details were becomes utterly relevant, but there is no way of resolving that, because there is no jury trial. Accordingly, the judge has to have a hearing when he determines what in his or her view actually happened. The result of that is that the accused has come to accept in effect a plea which has the effect not of being what he wanted but of something that the judge decided he should have wanted.

This is the reason for the Newton hearings. As the noble and learned Lord, Lord Judge, said, to make the matter just, you have to know what happened. That is because the plea has not been sufficiently detailed to determine that. That is why these hearings have to be held. I once thought that it might be possible to get to a better solution by making it a requirement of an indictment to have more detail in it, but that has not so far happened. Who knows what may happen yet?

That is the situation of the Newton hearings. I understand the noble Lord, Lord Thomas of Gresford —with his great experience of both English and Welsh law on this subject—to suggest that if there is a dispute between the accused and the Crown about whether the accused has, justifiably or otherwise, refused to disclose what has happened to the body, the matter would be subject to a Newton hearing. I think that, if that happens, a Newton hearing is inevitable. Fortunately, I think that the noble and learned Lord who will follow me explained that that circumstance is usually taken into account at the conclusion of a hearing, including of course the jury trial, if the matter has become an issue between the parties at that stage. On the whole, it seems likely that this kind of question would be resolved without difficulty. It must be pretty much a matter of clear fact at the time of the trial and, therefore, the judge would usually take account of the situation agreed between the parties as to whether the accused has disclosed where the body went. This is on the assumption that the accused accepts that he committed the murder. I believe that the consequence of all that is that the number of Newton hearings with this subject matter will be relatively small.

I have to say that I speak on this matter subject to the observations of those learned in the law of England who will follow me. This is a matter of course only for the Crown Court, and therefore does not involve the magistrates’ court in which the noble Lord, Lord Ponsonby, is so experienced. In my view, accordingly, there are a very limited number of circumstances in which this arises at all but, if it does arise, it is obvious that the decision of the judge in the Newton hearing will take place before he commits sentence. Therefore, Rule 5 of the Parole Board Rules requires that if the observations of the judge at trial before sentence are available, they are to be considered. The rules already take account of the exceptional cases, if any, in which a Newton hearing has taken place in relation to this matter. I therefore cannot see that it is at all right to modify the Bill by such an exceptional circumstance, which in any case illustrates a possible need for improvement in the law of England and Wales.

[Lord Thomas of Cwmgiedd [V]]

It is a pleasure and privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, in this debate. It is important to observe at the outset that I consider this amendment the kind of amendment that shows the danger of trying to make piecemeal amendments to a very limited-purpose Bill.

If I may be permitted, I will first say a little about the law of England and Wales in relation to the role of the judge and of the parties in determining the facts for sentencing. The least common form of determining the facts is a Newton hearing. More commonly, the facts—if there is to be a plea of guilty—are determined on the basis of plea. Both procedures are set out in cases to which reference has been made, but they are now codified in division VII B of the Criminal Practice Directions. By far the most common method of determining the facts is the determination made by the trial judge for the purposes of sentencing. Although a jury determines guilt or innocence, save in a most exceptional circumstance, it is for the judge who has heard all the evidence to determine the facts on which he or she will sentence. If the judge follows the correct approach to this, there can be no dispute before the Court of Appeal in relation to the findings made, as set out in the 2018 judgment of Mr Justice Sweeney in the Queen v King.

Thus, what this amendment seeks to do, on the face of it, is to refer to the least common means of determining facts for the purposes of sentence, leaving out a slightly more common means, but not so common in murder or the other cases covered by the Bill where a life sentence will be involved—that is, a basis of plea agreed with the prosecution—and leaving out of account entirely what would normally happen, which is that the trial judge would have made findings. In the case of murder, this is particularly important because, as I mentioned in Committee, if the body has not been found or has been dismembered so that it cannot be found, this is provided as an aggravating factor under Schedule 21 to the Criminal Justice Act 2003 and the judge must make findings about it—and, in my experience, they invariably make findings about it—and it would be essential for the Parole Board to take that into account to avoid any risk of double punishment.

I therefore regret to say that, on its face, the amendment, if it seeks to deal with the narrow issue of what the Parole Board should do, is not a good amendment, because it leaves out the most common form of the determination of facts. However, if the wider purpose, as explained by the noble Lord, Lord Thomas of Gresford, is to encourage the taking place of Newton hearings after a trial, I venture to suggest that this is a most undesirable process. The trial judge will have heard the evidence; it is plain that, if a body has not been discovered, its whereabouts have not been discovered or the identity of the victim is unknown—as happens often in indecent image cases—this is bound to have been debated at the trial, and the trial judge will, as the law stands, have made the necessary findings. It is to those that the Parole Board should have regard.

If, however, it is thought that there should be a different procedure and that we should look at this matter again, I respectfully suggest that this is not the Bill in which to do it, and that this provision does not achieve what is intended. It illustrates that, if there is a problem with the way in which facts are determined—I believe there is no such problem—this is a matter that should be part of a wider investigation and not undertaken in this limited-purpose Bill.

I therefore propose to vote against this amendment on various completely different grounds. First, it has the potential to impair the discretion of the Parole Board by expressing reference to a particular means of determining the basis of sentencing and leaves out the more important. Secondly, it is unnecessary for the way in which the Parole Board approaches cases for the reasons I gave last time. Thirdly, the Parole Board is under a duty to look at what the judge has found. Fourthly, if there is a wider purpose, this is something that should be examined separately. This amendment achieves none of these purposes and I urge the House to reject it, if the House is divided.

--- Later in debate ---

[Lord Mackay of Clashfern [V]]

My Lords, I strongly support the Bill and I am conscious of the sort of hurt that the basic matter on which this Bill is founded can cause to people for many years. It is also very important that victims are at the centre of the criminal justice system, and the Parole Board is only part of that, albeit an important part.

I think that it is much easier and more definite if victims are properly included in the victim contact scheme. In other words, victims should be notified about anything that affects them. This is certainly one thing that they should be notified about, but I feel that having a system only for this particular matter—for the Parole Board—is taking the victim from the centre of the victim contact system out to a special place. In my view, unless we have a victim contact system that deals with all the possible interests of victims in what is going on, particularly in relation to those who have done them harm, there is a serious risk that the system is not sufficiently efficient.

It is also important that we keep in contact with victims. That involves finding out if there is a change in their circumstances—in their addresses or in any other matter that affects giving them notice. It is therefore important that a comprehensive system is set in place. I entirely agree with almost all that has been said about contact with victims, but I am not sure that it is wise to set up a system which deals with only one aspect of the criminal justice system rather than a system that deals with the whole lot, which the victim contact scheme was supposed to be. If it has deficiencies, as my noble and learned friend said, the thing to do is to put those right.

[Lord Naseby (Con) [V]]

My Lords, the House will know that I am not a lawyer. As it happens, I spent about 20 years of my life in the communications industry. One lesson that I learned was almost to a word what my noble and learned friend Lord Mackay just said. In the time available, I have not had a chance to look at the contact scheme—what it should do, what it does do and what it might do. While I say a huge thank you to the noble Baroness, Lady Newlove, for the way in which she put the situation, I want to be informed by my noble and learned friend on the Front Bench what exactly the victim contact scheme is supposed to do at the moment. I find it inconceivable that it does not do the majority of the items that are listed under Amendment 17, but maybe it does not. Maybe there are holes in it.

It may well be that, in certain cases, the Parole Board is not doing its job properly, but the fact that we include something in the Bill will not actually alter that situation one way or the other, except for those responsible to be cautioned or whatever.