My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.
The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.
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Consequently, in those circumstances there would be bound to be a Newton hearing along the principles outlined by the noble and learned Lord, Lord Judge. I feel that I am facing considerable senior opposition from the noble and learned Lords, Lord Thomas and Lord Mackay, but I am fortified by the considerable support given to these proposals in Committee by the noble and learned Lord, Lord Woolf, as your Lordships will recall.
As for what the Minister has said, I make it clear that I am not limiting the Parole Board to the findings of a Newton hearing that has taken place some 15 years before. The Parole Board is bound to look at a whole amount of evidence, particularly reports from the prison, medical reports or the victim’s statement. There are all sorts of factors and issues that the Parole Board is to take into account. I suggest not that it should be
bound by the findings of a Newton hearing but that it is another factor that ought to be taken into account. For that to happen, it is necessary that there is a Newton hearing in the first place where there is an issue about whether there is an acceptable reason—I will not say a proper reason—for a failure to disclose in the circumstances that we have been discussing on the Bill. More thought ought to be given to this and, for that reason, I will press my amendment.