Prisoners (Disclosure of Information About Victims) Bill — House of Lords, 2020-05-20
Topic: Law and Crime
Deborah Bull (Crossbench, Unknown): My Lords, it has long been recognised that the withholding of information about the location of victims’ remains can have a devastating impact on the lives and mental health of their families. This Bill enshrines in law what is already the practice in parole boards, which is fully to consider the failure by a prisoner to disclose this information or, indeed, to disclose the identity of child victims of indecent imagery. By removing any discretion to disregard non-disclosure, the Bill will play an important role in helping families come to terms with what for most of us is unimaginable grief. It is for these reasons that I supported the Bill at Second Reading. In doing so again today, I repeat my tributes to Marie McCourt and to those people who have campaigned tirelessly over several decades to see legislation of this sort brought before the House Amendments 2 and 4 in Clause 1 and Amendments 7, 8, 10, 11, 13, 14, 16 and 17 in Clause 2 make two connected points. The first is that parole boards must take account of the prisoner’s state of mind when determining whether they can in fact make a disclosure, and the second is that the prisoner’s mental capacity within the meaning of the Mental Capacity Act 2005 to make the disclosure, is taken into account. Out of necessity, the amendments are repeated at relevant places in the Bill, so I am essentially speaking to two amendments, and these two amendments stand together My amendments address the concern I raised at Second Reading that, as drafted, the Bill fails to provide adequate protection for prisoners with mental health issues, and therefore seeks to balance the imperative for justice with the appropriate regard for human rights. Since that occasion, I have discussed these concerns with colleagues working in mental health and with others working in mental health charities, including the charity Rethink. I am grateful to them and to the noble and learned Lord, Lord Hope of Craighead, for their expert advice, and it is with their support that I have tabled these brief amendments In response to my questions at Second Reading, the noble and learned Lord, Lord Keen of Elie, said: "We are confident that the provisions of the Bill are sufficient and effective to apply in the contexts of non-disclosure, psychiatric conditions and mental illness."—[Official Report, 28/4/20; col 214.] Speaking in the other place, the Lord Chancellor and Secretary of State for Justice, Robert Buckland, further clarified the Government’s acceptance by saying: "This subjective approach is fundamental to the proper functioning of the Bill."—[Official Report, Commons, 11/2/20; col. 748.] In other words, the Government accept that the approach has to take into account the circumstances of the particular prisoner. This acceptance is important because the consequences of deliberate non-disclosure will, in most cases, give rise to a longer period of imprisonment. The Government rightly accept that these consequences should not flow on a strict liability basis, but only where in effect the non-disclosure is culpable and where there is, as conventional principles dictate, the combination of a relevant act carried out with the requisite degree of either intentionality or recklessness This approach has to be correct; any other approach would come dangerously close to suggesting that the mere fact that there is missing information means that the prisoner should be held responsible for withholding it. While the Government’s acceptance of this key point is welcome, the Bill does not at present specifically direct the Parole Board’s attention to the consideration of whether, first, the prisoner has the mental capacity to decide whether or not to disclose the information, and/or, secondly, whether for some reason—for instance, because of the presence of mental disorder—they cannot form the requisite intention to withhold the information It is difficult to know how extensive a problem this might present, as it has always been challenging accurately to estimate the number of prisoners with mental health problems in England and Wales. The 2017 report from the Public Accounts Select Committee showed that people in prison are more likely to suffer mental health problems than those in the community, and successive reports from the noble Lord, Lord Bradley, the National Audit Office and others have all highlighted that it is unknown precisely how many prisoners have mental illnesses. Figures from NHS England in March 2017 showed that nearly 8,000 prisoners, 10% of the prison population, were receiving treatment for mental illness in prison. It is estimated that 37% of NHS expenditure on adult healthcare in prisons is on mental health, which is more than twice the proportion within the NHS budget as a whole. The Public Accounts Committee also found that imprisonment can exacerbate mental illness, due to what it describes as, "a deteriorating prison estate, long-standing lack of prison staff and the increased prevalence of drugs in prison." This is highly relevant to the Bill, given that parole hearings are likely to take place some considerable time after sentencing The World Health Organization points to several factors that have negative effects on the mental health of prisoners, including exposure to violence, enforced solitude or, conversely, lack of privacy, absence of meaningful activity, insecurity about the future and inadequate mental health services. Prisoners with mental health issues are often subject to bullying and extortion; they may even have their medication stolen. The Royal College of Psychiatrists has expressed concerns that its members are unable to deliver adequate mental health services in prisons These points bear repeating here because they demonstrate both the scale of mental health problems in the prison population and the potential for mental health to deteriorate during imprisonment. By extension, mental capacity may also change during imprisonment, given that, as defined within the Mental Capacity Act 2005, lack of capacity may be related to mental health, learning disabilities and neurodegenerative conditions such as dementia. The charity Rethink and other experts believe that these particular conditions are likely to be overrepresented in the prison system. Capacity is also specific to a given decision, rather than universal, meaning that a person who lacks capacity for some kinds of decisions may well be able to make others. The Mental Capacity Act code of practice is clear that a person can have capacity to make decisions in certain areas—for example, deciding what activities to undertake—while lacking it in others, such as a decision to disclose information. The potential for capacity to change over time, particularly with mental health conditions such as dementia, is especially relevant here, as the Government are rightly focused in the Bill on the present position. This makes it all the more important that parole boards are directed to take into account the current capacity of an offender to disclose information about a victim, the presence of mental illness at the time of the hearing, the place of the offender in their mental health recovery and their compliance with any treatment for mental health conditions As the Bill is presented, it would indeed be possible for the Parole Board to take these matters into account in the very broad discretion provided by each of the relevant clauses. This could also be amplified in any guidance provided to the Parole Board, but I contend that the Parole Board is not directed with sufficient precision to consideration of whether refusal to provide the relevant information is deliberate, and hence culpable. As the consequences of deliberate nondisclosure are, and are intended to be, serious, the test to be applied by the Parole Board should explicitly reflect this To conclude, my amendments would ensure, first, that specific focus is placed in that broad discretion on whether the refusal to disclose information is deliberate and therefore culpable, hence also relevant to consideration of the likely risk that the prisoner will pose; and secondly, that when considering questions of the prisoner’s capacity to make the decision to refuse to disclose the information, the Parole Board is doing so by express reference to the provisions of the Mental Capacity Act 2005. This is of no little importance, given the time-specific nature of the test for capacity in the Act. The focus of the Parole Board’s attention should be on whether the prisoner currently has the capacity to make the decision, rather than the position historically. This will be of particular relevance where the prisoner has a progressive condition such as dementia The Parole Board’s broader discussion to take account of all other relevant factors remains unfettered by the amendments. I urge the noble and learned Lord to consider these amendments and the attempt behind them seriously. I believe that they in no way undermine this important Bill; rather, they strengthen it by directing the Parole Board explicitly to determine whether prisoners’ withholding of information is deliberate, conscious and therefore culpable, and not unimportantly a potentially legitimate signifier of continued risk. I beg to move.