Amendment 292K

Police, Crime, Sentencing and Courts Bill - Committee (11th Day) – in the House of Lords at 5:45 pm on 24th November 2021.

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Baroness Brinton:

Moved by Baroness Brinton

292K: After Clause 170, insert the following new Clause—“Desecration of a corpse(1) A person (‘D’) is guilty of an offence if—(a) D acts with severe disrespect to a corpse, and(b) D knows that, or is reckless to whether, their acts are one of severe disrespect.(2) In subsection (1)(a), disrespect to a corpse includes but is not limited to—(a) dismembering a corpse, including—(i) removing or attempting to remove identifiable body parts such as teeth, or fingers;(ii) decapitation or attempted decapitation;(b) destroying or attempting to destroy a corpse by means or burning or the use of chemicals.(3) For the purposes of subsection (1)(a), whether an act is one of severe disrespect is to be judged according to the standard of the reasonable person.(4) A person is not guilty of an offence under this section if—(a) the act would otherwise be criminal under section 1 of the Human Tissue Act 2004,(b) the act is also a criminal offence under section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), or(c) the act is a lawful cremation under the Cremation (England and Wales) Regulations 2008.(5) A person guilty of an offence under this section is liable—(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years.”Member’s explanatory statementThe current common law offence of preventing a lawful and decent burial is rarely used. This amendment therefore creates a specific criminal offence of desecration of a corpse to address intentional acts of disrespect towards a deceased person’s remains.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health)

My Lords, Amendments 292K and 292L in my name seek to create a criminal offence of desecration of a corpse and concealment of a corpse. At present, there are only common-law offences of preventing a lawful burial and obstructing a coroner by concealing a body.

Marie McCourt, the mother of Helen McCourt, still does not know what happened to her daughter who disappeared on 9 February 1988, or where her body was hidden or disposed of. Marie is one of those extraordinary women who absolutely refused to stop looking for her daughter, even though Helen’s murderer, who was convicted on clear DNA evidence, has not only served his term in prison but been released on licence. Despite being pressed repeatedly by the authorities over the years, he has refused to say where Helen’s body was left or what happened to it.

Marie has been arguing for decades that the desecration and concealment of a corpse is an extra-heavy sentence on the victim’s loved ones. She has supported the families of many other victims who have seen their loved ones murdered but have no remains to bury, or have heard of unspeakable desecration of their bodies.

In 2015 Marie started to campaign for a change in the law for these killers, seeking to require them to reveal where their victims’ remains were before being considered for parole. In July 2019, she was successful in getting that law changed—but not in time for her daughter’s killer. Marie was not doing it just for her, her family or Helen’s friends. She does not want anyone else to go through the agony they have faced for over three decades.

Others have also spoken out: Coral Jones, Tony Cox and Lesley Rees are the parents and family members of April Jones, Lorraine Cox and Michael O’Leary, who were also not just murdered but had their bodies desecrated by their murderers. Some remains were dismembered and some were burned. These families have had the extra distress of not knowing what happened to part or all their loved ones’ bodies. For these families there is no closure. More recently, Sarah Everard’s remains were burned by her murderer—although in her case police were able to find her remains.

At present, with the common-law offence of preventing a lawful burial, and these days with excellent forensic skills such as those used by police and forensic staff in the Sarah Everard case, it is possible to identify not just remains but also links with the murderer. The common-law offence of obstructing the coroner by concealing a body is rarely used, and there are no consequences for a convicted killer who continues to conceal the whereabouts of a body. Some killers enjoy having this last part of control over their appalling acts. They know that most families will never have a day without reliving the distress of their loved one being murdered. Refusing to disclose what they have done with the body, or where they have concealed a corpse or partial remains, is a form of control.

I thank Marie McCourt, Fiona Duffy and Claire Waxman, the London victims’ commissioner, and her office, for helping to brief me this. There can be few things worse for a family than hearing that a loved one has been murdered. To then learn that their remains have been further abused or have never been found causes unimaginable distress. The current laws are inadequate and mostly not used by prosecutors. These amendments say that these two offences should become criminal offences where an offender has done an intentional act of disrespect towards the deceased person’s remains. The second amendment makes it a criminal offence for an offender to refuse to co-operate in the recovery of their victim’s remains. These offences will punish an offender who has committed these unspeakable acts beyond murder, and also perhaps begin to bring closure to grieving families. I beg to move.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I thank my noble friend Lady Brinton for introducing these amendments, which we support. The “Helen’s Law” campaign has achieved a great deal by persisting in campaigning for victims and their families by ensuring that failure to disclose the whereabouts of a victim’s body can increase the killer’s time in custody. These amendments go further, as my noble friend has explained. She has worked with Helen’s mother, Marie McCourt, and others on these amendments, proposing to create specific offences of desecration of a corpse and concealment of a body.

These amendments address serious and real human suffering caused by preventing a victim’s family from recovering the body of their loved one, whose life has already been cruelly snatched from them. The proposed offences would respond to that cruelty in a way that may be inadequate in reducing the hurt, but at least they reflect the justified anger we all feel when killers compound their inhuman actions with further callousness and inhumanity. As my noble friend explained, the existing legislation is not only inadequate but rarely used. We support her amendments.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.

Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.

Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.

We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.

Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.

Thirdly, where an offender is convicted for murder or manslaughter and then considered for release by the Parole Board, the Prisoners (Disclosure of Information about Victims) Act 2020 may apply. That legislation was brought into being under the impetus of the campaign by Marie McCourt, to whom this side of the House joins the Benches opposite in paying tribute. That is where a person who has declined to disclose the whereabouts of a body goes before the Parole Board. As a result of that legislation, in such cases, the Parole Board must take into account any failure on the part of the offender to disclose the whereabouts of a victim’s remains as part of its assessment of the offender’s risk to the public.

For these reasons, the fact that this amendment will replace a wide-ranging common law offence with a more narrowly defined one with lesser sentencing powers and that concealment is already reflected as an aggravating factor in offences, the Government do not think that this new offence is necessary and cannot accept this amendment.

Amendment 292K seeks to deal with the desecration of a body. The meaning of acting

“with severe disrespect to a corpse”,

to use the language of the amendment—desecration—could, under the clause, include several circumstances such as mutilation, hiding or concealment, which could also lead to obstruction of the coroner, unlawful burial or cremation, or otherwise preventing the lawful burial of a body. It could also mean taking photographs of bodies where it is inappropriate or unnecessary so to do. We understand the sentiment behind this amendment and agree that it is paramount that the bodies of those who died should be treated with dignity and respect.

The amendment is, I think, designed to address the issue of where a person desecrates a corpse to avoid detection for an offence. As I have said in relation to the other amendment, the desecration of a body is thus likely to be connected to another offence and, as such, is also likely to amount to a clear aggravating factor in sentencing. It is hence liable to lead to the imposition of a more severe penalty. The criminal law can intervene by way of a number of offences that may apply, such as the common law offence of perverting the course of justice and others in statute, for example the disposal of a child’s body to conceal a pregnancy or burning a body other than in a crematorium. Depending on the circumstances, other offences can include misconduct in public office where, for example, the offender is a police officer who came into contact with the body in the course of his duties.

However, we know that the offence proposed here is not limited to desecration that is connected to avoiding detection. It can cover a much wider range of inappropriate behaviours, including unauthorised photographs, causing injury to bodies and non-penetrative sexual activity. The Government have already announced an inquiry into the disturbing events that took place in Tunbridge Wells. I refer the Committee to the Statement on 8 November by the Secretary of State for Health and Social Care in the other place. We also specifically said that we would look at the existing penalties for the offence of sexual penetration of a corpse. It may be that those reviews will highlight other issues that need to be considered, including the coverage of existing offences that deal with desecration. In that sense, we see this amendment as a helpful starting point, even if it was not intended for that wider purpose.

I do not say that the Government will adopt the specific approach taken in this amendment, nor am I ruling out further future changes to the law on the desecration of a corpse after consideration of the evidence that emerges following recent events. I hope that the Committee acknowledges the ongoing work that is taking place to establish the facts to be learned from these recent events but that, given the reassurance that these matters are being considered, the noble Baroness feels able to withdraw her amendment.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health) 6:00 pm, 24th November 2021

I thank all speakers for their thoughtful and moving responses to the difficult issues covered by these amendments. I particularly thank my noble friend Lord Paddick for his support; he was absolutely right to talk about the devastating, inhuman and callous behaviour that these two amendments attempt to codify. The noble and learned Lord, Lord Falconer, reiterated the key legal arguments and had information that I did not—that there have been at least 54 murder cases where this is relevant. I thank them both for their support.

The Minister says that Amendment 292L narrows the area from the common law equivalent and that the sentence is less. The problem is that the common law equivalent is never used. The reality is that many prosecutors do not recognise it, and noble Lords know that there are a number of times when prosecutors do not go for more serious charges to ensure that they get something through a court that a jury recognises. But it is important to understand that we are not proposing to repeal the common law offence. It is vital to understand that. The amendment deliberately did not propose repealing the common law offence expressly to keep it on the statue book and therefore give the courts full discretion to use it, if they so wish.

On Amendment 292K, the Minister said it is paramount that bodies should be treated with respect, and he is absolutely right. He also said that desecration to facilitate the hiding of the body is an aggravating factor, but too rarely has that been recognised. I am grateful that he used the word “may” in possibly considering these issues as part of the inquiry into the Tunbridge Wells case. I spoke on the Statement on this matter in your Lordships’ House, when it came up two or three weeks ago, and one of the problems with the current crime of necrophilia, which, from memory, has been on the books since either 2013 or 2003—I apologise for not remembering which—is that it has never been used. We have these cases that either are too embarrassing to deal with or have concerns from prosecutors that they will not get past a jury.

Will the Minister have a meeting with me to consider changing that word “may” and to see whether it is possible to include this in the inquiry? Despite the acts of the Tunbridge Wells case being different, the consequences remain the same for the families of the bereaved. In the meantime, I am content to withdraw the amendment and will consider whether to bring both back on Report.

Amendment 292K withdrawn.

Amendments 292L and 292M not moved.