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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Turning to my amendments, I was much impressed by the speech of the noble and learned Lord, Lord Garnier, at Second Reading, in which he made points that he has repeated today. It occurred to me that his problem was, as the Minister described it, that giving a sentence for a separate offence of failing to disclose the whereabouts of remains would be ineffective because it would have to take place immediately and concurrently and could not be brought into effect at some indeterminate time in the future.
My mind turned to the Newton hearings, which are commonplace in court and in which a judge will determine, without a jury, when an issue is in dispute. It seems to me that a proper way of dealing with these cases would be that, if there was a dispute and the judge could ascertain that, then there should be a trial on that issue before sentencing. For example, the judge could announce after a jury’s verdict or after a plea of guilty that he would sentence on the basis that there had been a culpable and deliberate concealment of the remains.
If issue were taken by the defendant with that indication from the judge, a trial could be held on Newton principles, whereby at the time of trial—very much closer to the events with which the court was concerned—it could be determined whether the defendant had mental capacity and to what degree he was culpable. Prior to sentencing, the judge could come to a conclusion. In his sentencing remarks, he would make quite clear the degree to which the tariff was being extended by reason of a finding of culpability, and that would be built into the system so that the Parole Board would not consider the matter until the tariff had been completed. That would seem sensible, and the victim’s family would know from the very beginning that there had been a finding of culpability that had affected the sentence.
The problem at the moment is that the Parole Board comes to conclusions on issues that might be 15 or 20 years old, relying on medical and any other evidence before it. However, if a Newton hearing had taken place, the Parole Board would be very much strengthened in the view that it took.
I appreciate that with many prisoners currently serving life sentences or sentences of extended degree there will never have been a Newton hearing. However,
if the provision that I suggest in my amendment were adopted, it would encourage judges, who could be given directions by the senior judiciary to follow that course, first, to say that they would deal with the defendant on the basis that he was culpable and, secondly, to hold a Newton hearing. In future, this might be a much more satisfactory way of dealing with matters than the current situation, in which the Parole Board looks at the matter with a lower standard of proof many, many years later.