Prisoners (Disclosure of Information About Victims) Bill

Lord Thomas of Gresford Excerpts

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

[Baroness Barker]

My Lords, I will address the same amendments in this group as were listed by the noble Baroness, Lady Bull. Amendments 5, 6, 9, 12 and 15 will be addressed by my noble friends Lord Thomas of Gresford and Lord German. I declare an interest as a member of an advisory board at the charity Rethink Mental Illness.

Like the noble Baroness, Lady Bull, I want to draw attention to the decisions being taken about a prisoner’s state of mind and their mental capacity to answer questions relating to the release of information about bodies. I was a member of the scrutiny committee in your Lordships’ House that did the pre-legislative scrutiny on the Mental Capacity Bill. Like the noble and learned Lord, Lord Mackay of Clashfern, I took part in the passage of that Bill through Parliament. I was part of the body that reviewed it and have subsequently been one of the Peers who participated in the Mental Capacity (Amendment) Bill.

When the post-legislative scrutiny of the Mental Capacity Act took place, it became very apparent that while it is widely regarded as being a very necessary and very innovative law, it is a law which is largely misunderstood and often ignored in practice. Some professionals, particularly in the world of health and social care, are very adept at understanding the concepts behind the Mental Capacity Act and are deploying them in their everyday work, but they are few and far between. Noble Lords who have listened to the noble Baroness, Lady Finlay, may have picked up on the fact that even within the medical profession, many practitioners simply do not understand what mental capacity and the tests of it are under this legislation.

During the review of the Mental Capacity Act, we spent virtually no time looking at the questions of how the Act is used within the criminal justice system, and I suspect that that was because it is not widely understood. As the noble Baroness, Lady Bull, made clear, the Mental Capacity Act rests upon the capacity of a person to make a particular decision at a particular time. It is not lawful to make a read-across from a person’s incapacity to make one decision to an assumption that they cannot make another. Therefore, in every case, it is for the Parole Board to decide at that point whether the prisoner has the capacity to withhold information, and that may vary over time.

It is right that we should discuss this, and we should look at putting these provisions in the Bill for three reasons. First, there are some conditions under which mental capacity can fluctuate. As mentioned by the noble Baroness, Lady Bull, some mental health conditions—the effects of drug and alcohol or degenerative diseases, the onset of dementia—may mean that over time the capacity of a prisoner to release this information diminishes.

The second is that there needs to be training and good practice for all practitioners throughout the criminal justice system in determining mental capacity. That includes members of the Parole Board. I wonder whether, in his summing up on this amendment, the Minister might say what training members of the Parole Board have and what guidance is available to them in making determinations under the Mental Capacity Act. Do they call on Mental Capacity Act practitioners, as people in social services do when they come to determine the capacity of an individual to make any decision?

In saying all this, I am acutely aware that, in some of these cases, the crimes happened a very long time ago. I understand that Helen McCourt’s case was one of the first in which DNA evidence was used. Some prisoners who have been in prison for a very long time could be victims of a miscarriage of justice. It is extremely important when we look at their refusal to impart information about the whereabouts of a body that we do so with great care and make sure that we are not misjudging a lack of mental capacity.

[Lord Thomas of Gresford (LD)]

My Lords, I am addressing Amendment 5 and the subsequent amendments to the same effect in relation to similar subsections in the Bill. I did not have the opportunity of speaking at Second Reading, so perhaps I can make one or two observations before I come to my amendments.

First, it is my experience that prosecutions where there is no body are comparatively rare. They do happen, but I recall only three or four cases in my own career where such things took place. If the Minister has information on this, I would be interested to know how many people subject to the provisions of the Bill are currently incarcerated in prison.

The noble Lords, Lord Blunkett and Lord Mann, referred to the Moors murders case. I was present in court at the Chester Assizes during that case as a pupil in support of the late Lord Hooson, who appeared on behalf of Brady. I can testify to the distress and huge impact that that case had on the families of victims— but not only them. It had an impact on the counsel who appeared in the case and indeed, I believe, on the judge.

Brady subsequently attempted, many years later, to take the police to places where he said he had buried bodies—to no effect. We cannot know whether this was a genuine attempt on his behalf to uncover the remains or whether he was simply, as has been put earlier in this debate, grinding the knife into the victims’ families. It is a terrible indication of what can happen to families in these circumstances.

My other point relates to the amendment from the noble Lord, Lord Blencathra. He relied on medical evidence, almost putting it in the place of the Parole Board. I prosecuted a double murder from mid-Wales which gave me a particular view. It was not a case where the bodies of the two victims were not available, but the defence was diminished responsibility. On the side of the defence in the original trial were no fewer than five psychologists and psychiatrists, giving evidence about the mental capacity of the defendant. On the prosecution side, there were four such expert views. After the conviction of the defendant, having observed their cross-examination in the witness box, one of the witnesses on behalf of the prosecution decided that the defendant really did suffer from mental incapacity. An appeal was launched on that basis. It was successful and there was a retrial in which there were then six experts for the defence and three for the prosecution. The defendant was still convicted of murder at the second trial by a majority of 11 to one.

What impacted on me was that members of the medical profession are accustomed to taking a history from patients, which they accept. There is no questioning of what they are told to any great degree. Therefore, to put the decision on the release of a prisoner undergoing life imprisonment in the hands of medical people is, to my mind, wrong. There should be a proper judicial process. I do not agree for a moment with the noble Lord, Lord Blencathra, that the Parole Board will swallow any guff put before it—that is simply not what experience tells us.

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, have indicated that they wish to speak after the Minister. I call the noble Lord, Lord Thomas of Gresford.

[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.

Prisoners (Disclosure of Information About Victims) Bill

Lord Thomas of Gresford Excerpts

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

I hope very much that, when he comes to reply, the noble and learned Lord will set out as clearly as he can what guidance has been given to the Parole Board about how it should deal with these cases under the statute, and will answer the various questions the noble Baroness has put to him. I hope, too, that his mind is not entirely closed to the possibility of addressing this difficult issue by an amendment at Third Reading if it seems, on further reflection, that this would be a better way to proceed.

[Lord Thomas of Gresford (LD) [V]]

My Lords, first, I wish to associate myself with the expressions of support and sympathy of the noble Baroness, Lady Bull, for those who have campaigned so strongly and so well for the Bill to be brought before the House. It is a very important Bill.

Secondly, I support these amendments because the ability of a prisoner to recall what has happened is, of course, paramount and of considerable importance when the Parole Board is considering its decision. I hope your Lordships will forgive me if I keep my further observations for the second group of amendments, which I will be speaking to in a moment.

[Lord Garnier (Con) [V]]

My Lords, we have discussed the arguments behind these amendments in Committee and, to some extent, at Second Reading. I am not sure that much has changed since. For my part, while I entirely accept the motives and intentions of those behind the Bill itself, as well as the amendments in this first group, I remain sceptical about the utility of the Bill as an addition to the criminal law. That said, I have every sympathy—who would not?—for the living victims of the abhorrent criminals covered by the Bill, and know why they, and those who support the Bill so enthusiastically, want it enacted. I am sure it will be very soon.

Both the Minister and my noble and learned friend Lord Mackay of Clashfern were not favourably impressed with my suggestion of a discrete criminal offence. From memory, only the noble Lord, Lord Adonis, was prepared to agree with me about the value of the Bill in its current form. My suggestions have now sunk below the waves and can be forgotten. However, I urge the House, despite the experience and wisdom of those supporting these amendments relating to the offender’s state of mind—either through the greater emphasis demanded of the Parole Board in Amendment 1 of the noble Baroness, Lady Bull, or through a Newton hearing under Amendment 3 in the next group, proposed by the noble Lord, Lord Thomas of Gresford—not to curtail the Parole Board’s independence and discretion.

As I indicated in our earlier debates, I would like the Parole Board’s work to be more accessible to the public. Despite the powerful analysis of the noble Baroness, Lady Bull, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, I agree with the Minister’s argument in Committee—which he seems to have repeated in his meeting with the noble Lords—that the Bill in its unamended form enables the Parole Board to fully consider the offender’s state of mind and their reasons for not disclosing the requisite information.

As was pointed out in our earlier debates, when considering the public safety implications of permitting a long-sentenced offender to return to the community, the Parole Board is looking at information and coming to a decision many years after the offence and the trial. A finding made by the trial judge shortly after the verdict about the offender’s failure to disclose the site of the victim’s body or—as the noble and learned Lord, Lord Hope, properly reminded us—the identities of children in criminal images is valuable, and will surely be brought to the Parole Board’s attention, as will be the effect of that finding on the judge’s sentence. However, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out in Committee, we need to be careful not to confuse punishment for the original crime and the public safety implications of the prisoner’s much later release.

It must seem to many noble Lords that, not for the first time, I have got to the church by way of the moon. However, in short, let us leave the Bill as it is. It will be no more effective if amended.

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Moved by

[Lord Thomas of Gresford]

3: Clause 1, page 1, line 20, at end insert—
“(c) where a Newton hearing took place before the trial judge prior to the prisoner’s sentencing, any findings of the judge as to the reasons for the non-disclosure, including the mental capacity of the prisoner.”Member’s explanatory statement
This amendment requires the Parole Board to take into account the findings of a Newton hearing (a short hearing held before a judge without a jury to resolve disputed facts before sentencing) regarding the prisoner’s reasons for non-disclosure, if one was held after a verdict or plea of guilty.

[Lord Thomas of Gresford [V]]

My Lords, the issue that my amendments seek to address is to determine how the withholding of information is to be judged a factor mitigating against the release of a prisoner on parole. The Parole Board makes a public protection order and, as the noble and learned Lord the Minister reminded us a moment ago, it must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the person should be confined.

This Bill requires the Parole Board, in making a public protection decision, to take into account, first, the prisoner’s non-disclosure of the whereabouts of the remains of a victim in murder and manslaughter cases or the identity of victims in the case of indecent images and, secondly, the reasons, in the view of the Parole Board, for the prisoner’s non-disclosure. The Parole Board must take on the difficult task of investigating the reasons for non-disclosure many years after the event, after the tariff period has expired—which, typically in murder cases, is 15 to 20 years. This lapse of time makes it unsatisfactory from the board’s point of view and, I would suggest, from the public’s point of view. But it is also unsatisfactory from the prisoner’s point of view because, although the proceedings affect his liberty, the onus is on him to satisfy the board that he has a proper reason, no doubt on a balance of probabilities.

Secondly, he will probably not be represented. He is entitled to have representation by a solicitor, but legal aid is very limited. He is of course required to set out his case in writing in advance of a hearing on reading the dossier that is sent to him, with or without the help of a solicitor or a friend. Thirdly, if the issue is one of mental capacity, he will of course have great difficulty in representing himself and he has no appeal, save for the discretionary and difficult route of judicial review.

It is highly unsatisfactory also from the point of view of the victim or the victim’s family. First, the prosecution is not represented. Unless the board itself steps into the arena at a hearing, assertions made by the prisoner will not be subject to proper challenge. Secondly, the victim or the victim’s family have a very limited role—nothing save to supply either in writing or orally a victim statement of the impact of the crime on them. Thirdly, the proceedings are, for good policy reasons, held in private—but that means that the issues which are discussed do not receive the light of day.

These difficulties were highlighted by the noble and learned Lord, Lord Garnier, at Second Reading. I am sorry to see that he has now found his way to the moon. His proposed solution, of having a second jury to investigate the reasons for non-disclosure post trial, was impractical, as I think he himself has admitted. He was suggesting that a consecutive sentence should be imposed which would come into effect at some indeterminate future date, presumably after the Parole Board had made a decision to release the prisoner. A consecutive sentence after a mandatory life sentence would not by definition be appropriate. However, although he has resiled from his position, his suggestion that the reasons for non-disclosure of information should be investigated at the time of the trial is obviously very sensible. At that moment, the judge is apprised of the circumstances of the case, as are both the prosecution and the defence.

What is the appropriate mechanism? I have suggested a Newton hearing. My amendments do not make the holding of a Newton hearing mandatory, but they do encourage the holding of such a hearing if there is a dispute about the reasons for non-disclosure at the time of the trial. For example, it might be the mental capacity of the accused or, as I suggested in Committee, where the defence is, “Well, I was part of a group and I do not know what happened to the body; I was not party to its disposal.” They also deal with the situation where a prisoner might seek to argue a subsequent loss of mental capacity: “I cannot remember now why I could not remember at the time of the trial.” That is not a very persuasive argument for meriting release in any event. I suggest that, before sentencing, the judge should inform the defendant, if it be so, that he is sentencing on the basis that critical information is deliberately being withheld, unless the prisoner wishes to contest that assumption. If the prisoner does not, that is the end of the matter. Fifteen years later the prisoner can hardly with success raise reasons for his non-disclosure which he was not prepared to adduce before sentence. However, if he does contest the basis of his sentence that the judge has indicated, a Newton hearing is entirely appropriate.

The purpose, principles and procedure of such a hearing were thoroughly explored by the noble and learned Lord, Lord Judge, then Deputy Chief Justice, in 2003 in the case of Underwood and others. That case has been followed in a recent case in the Divisional Court last July. The noble and learned Lord, Lord Judge, said:

“The … principle is that the sentencing judge must do justice. So far as possible the offender should be sentenced on the basis which accurately reflects the facts of the individual case.”


He said of the 1983 Newton case, which gave rise to this procedure, that it was

“a classic example of an imperative need to establish the facts. To proceed to sentence without doing so, would have been productive of injustice.”

It may be said—the Minister may say it—that the issue could be resolved before a jury by charging an accused in addition to murder or manslaughter with the common law offence of preventing the lawful and decent burial of a body. There is no point in so doing. Any sentence for such a common law offence would be bound to be of a lesser magnitude and would run concurrently from the day it was imposed. It might very well prevent the judge increasing the tariff on the main charge by reason of the aggravating factor of concealing the body, for which he has just imposed a sentence of imprisonment.

I recall the “mummy in the cupboard” murder case in Rhyl in 1960, which drew international attention. The defendant, a boarding house landlady, had stored the body of a tenant of hers in a cupboard. It was 20 years before it was discovered in a mummified condition. The issue at trial at Ruthin assizes was whether the stocking around the deceased’s neck had been used to strangle her. There is no evidence that the material was stretched. The ferociously intense cross-examination of Andrew Rankin QC is etched on my memory as one of the most dramatic court scenes I ever witnessed. Andrew was then a Liverpool junior—perhaps he was the Rumpole of the north—and the expert Crown pathologist he was questioning passed out completely and ended up in a crumpled heap on the floor of the witness box. The defendant was acquitted of murder but convicted, not of the common law offence of preventing a lawful burial—which had not been brought but of which she was clearly guilty—but of collecting the £2 a week that the deceased’s husband had posted to her in the belief that she was alive. That was just over £2,000 over 20 years. She received 15 months’ imprisonment.

As for failing to disclose the identity of children pictured in indecent images, there is no separate offence. No criminal offence is committed by such failure and the accused is not obliged to say anything unless he or she wishes to do so, so that is not an appropriate alternative route. However, in any event, such an argument of adding an additional count cannot be made where there is a plea of guilty: if there is no trial, there is no jury. Where there is serious disagreement between prosecution and defence as to the basis of a plea, a Newton hearing is essential and commonly held.

I have looked at the current sentencing guidelines. There are listed four statutory aggravating factors, such as offences against emergency workers or those committed because of homophobia. I have also looked at the list of 21 other aggravating factors in the sentencing guidelines, none of which includes the concealment of information of the nature with which the Bill deals. The list is said to be non-exhaustive, but it illustrates the importance of the Bill. The campaigns have found a chink, as the noble Baroness, Lady Bull, said, which deserves to be filled.

I therefore commend these amendments as providing a sensible, contemporary—at the time of trial—resolution of issues which would be difficult for the Parole Board to determine 15 or 20 years later. Of course, I pay tribute to the Parole Board’s experience and to the discretion which it frequently exercises. Nevertheless, it is difficult for it to determine something after such a lengthy time.

I propose to test the opinion of the House on these amendments but, whatever the result of the vote, I hope that the Government will reflect upon the issues which they raise and that they will introduce these or similar provisions in the other place, which will provide a sensible solution to the problems we are discussing and ensure a justice for all the parties in which the public will have great confidence. I beg to move.

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[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.