My Lords, I will speak to Amendments 2 and 4, to which I have added my name. I am most grateful to the noble Baroness, Lady Bull, for her introduction to the group. I too completely understand the policy reasons that have given rise to the Bill. I have the deepest sympathy for those who feel that they can have no closure until they are given the information that the Bill refers to.
A tragic headline in the Scotsman only three weeks ago read:
“We cannot say goodbye until Suzanne is found.”
This was a reference to the case of Suzanne Pilley, of whose murder her former lover, David Gilroy, was convicted in 2012. It is now 10 years since she went missing, and her body has still not been found. Her family believe that he is the only person who knows where it is. The problem is that Gilroy has maintained throughout, despite his conviction, that he is innocent.
He says that he cannot reveal where the body is and that it had nothing whatever to do with him. There seems to be no way out of this impasse, but the family’s distress is very real and very deep. As the noble and learned Lord, Lord Mackay of Clashfern, said, sadly, it is not always possible to find a just solution to their pain.
However, we need to be very careful about exactly what it is that the Bill is trying to achieve—or, to be more precise, about the test that the Parole Board is being asked to apply when it takes non-disclosure into account. The noble and learned Lord, Lord Garnier, was quite right in his understanding that our amendments seek to leave it with the Parole Board to make the judgment. As the noble Baroness, Lady Kennedy of Cradley, said at Second Reading in the Chamber in April, this is not a “no body, no release” Bill, although that is what some campaigners would have preferred. We need to be clear: is the Bill about simply delaying release as a punishment, or securing the release of information? Surely, it is only by securing the release of the information that the board will be able to give closure to those most affected. I hope the Minister will be able to confirm that it is the latter and that the point of the Bill is to strengthen the power of the Parole Board to encourage disclosure. “Encourage” is perhaps too mild a word because of course, we have to face the fact that disclosure must have been asked for repeatedly, time and again, ever since the prisoner was first interviewed by the police. Nevertheless, one can only hope that, however this is done, the board will be able to achieve that objective.
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It is worth bearing in mind, too—I hope that the Minister can confirm this—that we are contemplating a conversation between the board and the prisoner which may take place many years after the date when the crime was committed. That is because the board cannot begin to consider the prisoner’s case for release until their case has been referred to it by the Secretary of State. That, at least, was the system I worked with when I was the Lord Justice General in Scotland. As I understand it, this system continues to be used for public protection decisions under the Crime (Sentences) Act 1997, which this Bill seeks to amend. A case cannot be referred until the tariff component of the life sentence has been served, which nowadays for murder is normally not less than about 15 years. The timing is important, because, as the noble Baroness, Lady Bull, pointed out, imprisonment is likely to exacerbate poor mental health. The longer the period in prison, the greater its effect will be, so these will not be easy cases.
I greatly respect the work that is done by the Parole Board. I attended a number of its meetings in Scotland when I was Lord Justice General, as I needed to know how it went about its work in connection with some of the duties that I had to perform in that capacity. I found that great effort is put into gathering information about the prisoner, including their mental state, from a variety of sources, so that when it comes to consider making a public protection decision it does not start with a clean sheet of paper. It will almost certainly have a very large bundle in front of it to work through and study. It will also have to bear in mind that it may need to give reasons for its decision, especially when
issues about non-disclosure come up. That is why I suggest that, in fairness to the board as well as to the prisoner, absolute clarity is needed as to exactly what the board is expected to look for when dealing with these very sensitive cases. It needs to be understood as well that this issue will become critical only when everything else in the prisoner’s history and conduct points to release.
At Second Reading, the Minister said that the subjective test that the Bill lays down will enable the board to distinguish between cases where, for example, the non-disclosure is the result of a psychiatric disorder or where it is a deliberate decision not to disclose. As I understand it, “subjective” means nothing more than that it is for the board to form its own view when making the public protection decision. That is as it should be, and our amendment would not disturb that in the slightest.
This still begs the question as to what precisely the board should look for when it comes to a non-disclosure decision where a reason as to whether to delay a release that would otherwise be appropriate may need to be given. With great respect, I think that the Minister was right to distinguish between a psychiatric disorder on the one hand and a deliberate decision on the other. The implication of what he said is that, if it is the former, the non-disclosure should not count against the prisoner when considering their case for release—for it to do so would be to adopt the unacceptable “no body, no release” approach. However, if it was deliberate, it should indeed count against them, with the further implication that they would probably not be released until they made a disclosure. As I understand it, if that is what the Bill seeks to do, the fact that the non-disclosure must be regarded as deliberate if it is to be taken into account needs to be stated clearly and unequivocally in it.
I support the noble Baroness’s amendments because this degree of clarity is missing in the Bill. The clarity that I suggest we need can be addressed in one or other, or both, of two ways. The first is simply, as Amendment 2 proposes, to insert “is able to but” in new Section 28A(1)(c) before “not disclosed” This would make it absolutely clear that the Parole Board should look for a decision that could be regarded as deliberate because the prisoner was able to disclose the information and their refusal may hopefully be changed by the threat of delayed release, so that the families could obtain closure. If the non-disclosure is not deliberate—for example, if the prisoner cannot help it due to mental disorder and is not able to address the point at all—delayed release until disclosure, which could never happen because of their state of mind, would be wholly unfair and unjust.
The second way, as Amendment 4 proposes, is to make express reference to the prisoner’s mental capacity as a factor that must be taken into account. The two amendments would give clarity to these provisions without in any way undermining the overall purpose of the Bill and the discretion of the Parole Board. They would, however, help the Parole Board in the performance of this new statutory duty.
I hope that the Minister will feel able to look very closely at these proposals. The board needs to know, with as much precision as can be achieved, what this
measure expects it to look for when taking non-disclosure into account as grounds for delaying release when making the public protection decision. That is what subjecting it to a statutory duty requires.