It is a pleasure and privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, in this debate. It is important to observe at the outset that I consider this amendment the kind of amendment that shows the danger of trying to make piecemeal amendments to a very limited-purpose Bill.
If I may be permitted, I will first say a little about the law of England and Wales in relation to the role of the judge and of the parties in determining the facts for sentencing. The least common form of determining the facts is a Newton hearing. More commonly, the facts—if there is to be a plea of guilty—are determined on the basis of plea. Both procedures are set out in cases to which reference has been made, but they are now codified in division VII B of the Criminal Practice Directions. By far the most common method of determining the facts is the determination made by the trial judge for the purposes of sentencing. Although a jury determines guilt or innocence, save in a most exceptional circumstance, it is for the judge who has heard all the evidence to determine the facts on which he or she will sentence. If the judge follows the correct approach to this, there can be no dispute before the
Court of Appeal in relation to the findings made, as set out in the 2018 judgment of Mr Justice Sweeney in the Queen v King.
Thus, what this amendment seeks to do, on the face of it, is to refer to the least common means of determining facts for the purposes of sentence, leaving out a slightly more common means, but not so common in murder or the other cases covered by the Bill where a life sentence will be involved—that is, a basis of plea agreed with the prosecution—and leaving out of account entirely what would normally happen, which is that the trial judge would have made findings. In the case of murder, this is particularly important because, as I mentioned in Committee, if the body has not been found or has been dismembered so that it cannot be found, this is provided as an aggravating factor under Schedule 21 to the Criminal Justice Act 2003 and the judge must make findings about it—and, in my experience, they invariably make findings about it—and it would be essential for the Parole Board to take that into account to avoid any risk of double punishment.
I therefore regret to say that, on its face, the amendment, if it seeks to deal with the narrow issue of what the Parole Board should do, is not a good amendment, because it leaves out the most common form of the determination of facts. However, if the wider purpose, as explained by the noble Lord, Lord Thomas of Gresford, is to encourage the taking place of Newton hearings after a trial, I venture to suggest that this is a most undesirable process. The trial judge will have heard the evidence; it is plain that, if a body has not been discovered, its whereabouts have not been discovered or the identity of the victim is unknown—as happens often in indecent image cases—this is bound to have been debated at the trial, and the trial judge will, as the law stands, have made the necessary findings. It is to those that the Parole Board should have regard.
If, however, it is thought that there should be a different procedure and that we should look at this matter again, I respectfully suggest that this is not the Bill in which to do it, and that this provision does not achieve what is intended. It illustrates that, if there is a problem with the way in which facts are determined—I believe there is no such problem—this is a matter that should be part of a wider investigation and not undertaken in this limited-purpose Bill.
I therefore propose to vote against this amendment on various completely different grounds. First, it has the potential to impair the discretion of the Parole Board by expressing reference to a particular means of determining the basis of sentencing and leaves out the more important. Secondly, it is unnecessary for the way in which the Parole Board approaches cases for the reasons I gave last time. Thirdly, the Parole Board is under a duty to look at what the judge has found. Fourthly, if there is a wider purpose, this is something that should be examined separately. This amendment achieves none of these purposes and I urge the House to reject it, if the House is divided.
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