My Lords, my noble friend Lord Blencathra’s Amendment 1 and the amendments in the next group to be moved by the noble Baroness,
Lady Bull, and spoken to by the noble and learned Lord, Lord Hope of Craighead, are concerned with the prisoner’s state of mind or mental capacity at the time of his application to the Parole Board for release on licence. The amendments may start from different places but end up in more or less the same place. The difference between them is where the assessment of the prisoner’s state of mind begins.
In short, if one agrees with my noble friend Lord Blencathra, it is essentially for the prisoner to persuade two doctors that he is not pulling the wool over the eyes of the Parole Board about not being able to remember where the victim’s remains are. If I correctly anticipate the argument of the noble and learned Lord, Lord Hope, it is for the Parole Board to be satisfied that the prisoner’s state of mind or mental capacity is of such a quality that he is able to disclose, but has not disclosed, their whereabouts.
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With the greatest respect to my noble friend and the noble and learned Lord, I am not entirely sure that there is much of substance that separates them. In reality, they are doing nothing more than accentuating the need for greater certainty at the Parole Board hearing about the true state of mind and knowledge of the prisoner seeking release. It could be said that my noble friend wants a dispassionately independent or objective assessment of the prisoner’s state of mind from two medical professionals to inform and bind the Parole Board panel, fettering its discretion, whereas the noble and learned Lord is prepared to leave it to the Parole Board panel to reach its own conclusion on the matter without expressing a view on how it obtains the information necessary to reach its conclusion, so long as it takes into account the prisoner’s state of mind or mental capacity to make the requisite disclosure.
It will be recalled that my noble and learned friend the Advocate-General said at Second Reading that
“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.”—[Official Report, 28/4/20; col. 195.]
The amendment moved by my noble friend Lord Blencathra brings with it an emphasis familiar to those of us who have had the privilege of listening to his speeches on criminal justice policy in your Lordships’ House and previously in the other place, where he served as a Home Office Minister and a knowledgeable Back-Bencher. He was always listened to with great respect and I often agreed with him.
On this occasion, however, I am not persuaded that what he has proposed adds anything to what my noble and learned friend the Advocate-General said at Second Reading. His amendment is, of course, characteristically clear and forthright. It leaves no room for doubt about he wants and intends to happen. I accept that prisoners
convicted of murder or manslaughter should expect justice but not sympathy when asking the Parole Board to order their release after 20 or 30 years of a life sentence if they have not disclosed what they have done with their victim’s remains, particularly when they could have disclosed that information at or before conviction or sentence, when they must have known, or were more likely to have known—even with a trial some time after the event—precisely where the victim’s body was to be found.
The Bill as currently drafted does not preclude the Parole Board but commands it to take the prisoner’s non-disclosure into account, and, as my noble and learned friend said at Second Reading, the Parole Board is a “court-like body”. Knowing, as I do, a fair number of judges who have taken part in Parole Board hearings and been members of it, I have no doubt that its hearings will be conducted in a court-like way and that Clause 1(2) and Clause 1(3) in murder and manslaughter cases, and their equivalent provisions in cases of indecent photographs of children, will be resolutely and fairly applied.
All this is fine as far as it goes within the terms of the Bill itself. However, as I said at Second Reading, although Members of Parliament, Members of your Lordships’ House and others outside Parliament and politics have campaigned for the Bill with the best of motives, it is, in my judgment, a Bill that will disappoint. I listened with care to what was said at Second Reading in your Lordships’ House, having read the debates in the other place. I do not wish to be offensive, but mostly I heard and read enthusiastic applause. What Marie McCourt and the public at large need is a law that is clear, that deters and that bites. Such a law can be based only in a specific criminal offence of non-disclosure, tried not by a court-like body, but in public, by a judge, in an actual court, with suitable sentencing powers. Until we get to that point, while appreciating what the supporters of these amendments are getting at, I suggest that we let this Bill, imperfect as it is, pass unamended.