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.