I beg to move Amendment 96, in Clause 32, page 24, line 25, at end insert—

“(fa) the nature and seriousness of any conduct by the prisoner which—

(i) is alleged,

(ii) is as yet unproven,

(iii) has not resulted in a conviction, which may have implications for the risk posed by the prisoner.”

With this it will be convenient to discuss Amendment 118.

This victims Bill is long-awaited. Although it is good to finally be on my feet, I should say that part 3 is a distraction to debating the real and serious issue of victims. Many of us share the view that it should never have made its way into the Bill.

Amendment 96 seeks to broaden the list of things that the Parole Board must take into account when making a release decision. I want to set the context by saying a few words about the new release test. No one wants to see dangerous criminals released from prison, and the release of John Worboys, Colin Pitchfork and Tracey Connelly rightly led to public outrage. Setting the test out in legislation and introducing a new threshold may help to give greater transparency and consistency. However, it is not clear whether it will make a difference to how the Parole Board already operates. In evidence to this Committee, the Parole Board chief executive stated that it currently assesses risk

“as to whether the prisoner’s continued detention remains necessary for the protection of the public. That means that public protection is always paramount in our decision making.”

He went on to say that

“what is on the face of the Bill, in reality, gives effect to what the Parole Board already says in its guidance that we should take into account. We think that the legislation should make no significant changes to our practice.”—[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 51, Q100.]

My concern is that setting out in legislation the list of factors that the Parole Board has to take into account could lead to the process becoming a tick-box exercise. Clauses 32 and 33 set out matters—such as the nature and seriousness of the offence and the risk of the prisoner failing to comply with their licence conditions on release or committing further offences—that the Parole Board rightly takes into account when making a public protection decision. Although the list is non-exhaustive, there is a risk that factors that are not on the list but that may be important in a particular case do not get the consideration that they deserve. That could lead to poorer decision making, leaving the public less safe, and that leads me to my amendment.

I am deeply concerned that the draft list of criteria does not include alleged but unproven offences. Let us take Worboys, for example. His release on parole in 2018 rightly caused outrage. He was originally charged with attacking 14 women and faced 23 charges, including rape, sexual assault and administering a substance with intent. He was convicted of 19 offences in 2009. In December 2019, he was handed two additional life sentences for attacks on four more women, as it was revealed that he had confessed to targeting 90 victims. The failings of the police in this case are widely acknowledged, but on his release in 2018, the dossier from the Ministry of Justice did not emphasise the other allegations against him. Therefore the panel did not consider the alleged offences that he had not been charged with but, on the balance of probabilities, he had committed. In 2019, the Parole Board guidance was changed so that alleged but unproven allegations could be taken into account.

Litigation on this point followed, in the case of Pearce. Mr Pearce was sentenced after three offences of sexual assault. After serving his minimum sentence, the Parole Board refused to direct his release and instead directed his transfer to open conditions. In accordance with the new guidance on allegations, the board, when assessing his risk, took into account multiple unproven allegations about other alleged sexual assaults carried out by Mr Pearce against women and girls. Although the Court of Appeal found that the decision in respect of Mr Pearce was lawful, it held that parts of the board’s guidance were unlawful, as in its view only proven allegations could fairly be taken into account in the risk assessment.

The Parole Board appealed to the Supreme Court, which concluded in April this year that the Parole Board’s guidance on the unproven allegations against a prisoner is lawful. Therefore, alleged but unproven offences may be taken into account in release decisions where the Parole Board decides that they are relevant to the question of a prisoner’s risk to the public.

Although that is a step forward for victims and public safety, the Government’s failure to include alleged but unproven allegations on the statutory list is a huge step backwards. That was the key lesson from the Worboys case, so the omission is startling. It risks not only diluting the list’s importance, but the exclusion by panels of such allegations from their decision making. If that happens, decision making will be of a worse quality, and that will put the public at greater risk. That is why these amendments are so important, and I urge the Government to support them.

I welcome the hon. Member for Lewisham West and Penge not only to her seat but to her feet, to take on part 3 of the Bill. In answer to her opening comments, the reason that part 3 is included is that when we talk to victims, there are two key points at which they raise concerns and anxieties. The first is the initial stage, from the arrest to the charge, the court process and—hopefully—the conviction and sentencing of the perpetrator. The second, which has been raised with me, the Lord Chancellor and others, is when a perpetrator is coming up for release or parole. That is the thread that links part 1 and part 3 of the Bill.

I am grateful to the hon. Lady for her Amendment, which would explicitly add unproven allegations to the list of matters that the Parole Board must take into account when deciding whether it is safe for a prisoner to be released. I appreciate the point that she made about specific cases; I am a Leicestershire MP, and the impact and trauma of Colin Pitchfork’s deeds are still very much there among communities, not just in the immediate area where it took place but across my Constituency, because people remember them with horror. In this context, “unproven allegations” refers to allegations that the prisoner has committed offences in addition to those of which they were convicted. Those could be, for example, complaints recorded by the police or misconduct in prison.

I agree with the hon. Lady that unproven allegations are an important factor in risk assessment. I reassure her that they are already given the consideration they require by parole panels and that the Parole Board has specific guidance for its members on the matter. Members of the Committee may be aware that the Supreme Court recently handed down its judgment in the case of Pearce, to which the hon. Lady referred. The case considered the board’s guidance on unproven allegations, and the Court held that the Parole Board can have regard, where appropriate, to any unproven allegations regarding a prisoner and is free to give them due consideration as part of that release decision even where that material has not been established as a fact. The Parole Board has since updated its guidance in the light of the judgment and continues to consider unproven allegations in its decisions.

Given the potential importance of unproven allegations, we considered adding them to the list of mandatory criteria. However, this is a technical area of law and we fear that the amendment would potentially go further than the Pearce judgment, which would risk including baseless allegations that lack credibility and going beyond the parameters set by the Supreme Court judgment. In our view, the position agreed by the Supreme Court is clear and has been carefully considered. We are content that the developed jurisprudence gives sufficient clarity for the board to fairly consider allegations of this kind as it makes decisions.

Clauses 32 and 33 both contain a list of factors that the Parole Board must take into account when making a public protection decision about a prisoner. The list is explicitly not exhaustive. The list includes the conduct of the prisoner while serving their sentence as well as the risk that the prisoner would commit a further offence if no longer confined. In our view, unproven allegations already fall within the scope of these mandatory considerations. Members of the Parole Board are experts in the field and will consider all relevant and available information in line with the guidance regardless. On the basis that unproven allegations already fall within the wording and scope of both these mandatory considerations, that unproven allegations are therefore already an important part of the decision-making process, and that clear guidelines have been handed down by the Supreme Court, we consider the amendment unnecessary.

I thank the Minister for those comments. I note his point about the drafting of the Amendment perhaps going further than the judgment in Pearce. Given the importance of getting this right, might we look at a way that alleged but unproven allegations could be incorporated into the list between now and Report?

In the nicest way, I would not wish to leave the hon. Lady out of the multiple conversations that I am likely to have over the summer with her right hon. and hon. Friends about different aspects of the Bill. I hope that it has come across in Committee that I am always happy to work constructively with the Opposition on this. We may not always reach the same conclusion or end up in the same place, but I am always happy to have those conversations with the hon. Lady.

I am grateful for those assurances about working together on this. On that basis, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following:

Clause 33 stand part.

That the schedule be the schedule to the Bill.

Clause 32 will amend chapter II of part II of the Crime (Sentences) Act 1997, which relates to the release of prisoners serving life sentences. Clause 33 will amend chapter 6 of the Criminal Justice Act 2003, which relates to the release of prisoners serving determinate sentences. When a life sentence prisoner reaches the end of their minimum term or tariff—that is, the minimum period set by the independent courts that an offender must spend in custody—they will be referred to the Parole Board. The Parole Board will apply the release test set out in legislation: whether it is

“no longer necessary for the protection of the public that the prisoner should be confined”.

The board’s sole consideration in that decision is public protection.

Most determinate sentence prisoners are released from prison automatically at the halfway point of their sentence. However, certain high-risk offenders serving extended determinate sentences or sentences for offences of particular concern will be referred to the Parole Board before they are deemed safe to release. Offenders with an automatic release date who are deemed to be dangerous in custody can be referred to the Parole Board instead of being automatically released. Furthermore, offenders on determinate sentences who have been released and subsequently recalled to prison may be referred to the Parole Board.

In all cases, the Parole Board applies the release test set out in the legislation and decides whether it is no longer necessary for the protection of the public that the prisoner should be confined. Again, the sole consideration of the board is public protection. The overall intention is to codify the interpretation of the release test currently applied by the Parole Board so that the criteria for release or continued detention are transparent and understood by all. That will help to ensure consistency in decision making.

It may help if I set out the effects of the clause’s main provisions. First, I reassure the Committee that the clause will not change the existing interpretation of the threshold for release; it simply expressly sets out the criteria that must be taken into account by anyone applying the test. In the vast Majority of cases the Parole Board will be applying the test, as it does in each and every one of the 25,000 cases it considers each year.

As we heard in oral evidence from the chief executive of the board, Martin Jones, the board is content that the criteria in the clause

“should make no significant changes”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 51, Q100]

to the way its members currently assess a prisoner’s risk and suitability for release. However, there will be occasions, albeit very few, when the test is applied by the Secretary of State as a second check on behalf of the public; we shall come to those clauses in due course. The test will also be applied by the upper tribunal when considering an appeal by a prisoner against the decision of the Secretary of State to prevent their release. Again, we will consider the relevant clauses—and, I suspect, amendments from hon. Members—a little further down the line.

Proposed new section 28ZA(3) sets the threshold for a prisoner’s release as

“no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm.”

If the decision maker is not satisfied that that threshold has been met, the prisoner cannot be released and must remain incarcerated. The Government are clear on this. Public safety is our priority, and it cannot be compromised. The level of risk must be minimal and not an iota above. I trust that the Committee agrees that this is the right test and threshold.

The following subsections guide the decision maker in addressing questions on what serious harm is and how the decision maker should go about assessing minimal risk. For serious harm, proposed new section 28ZA(4) will require the decision maker to consider the likelihood of the prisoner committing

“an offence specified in Schedule 18B to the Criminal Justice Act 2003.”

Schedule 18B is inserted by the schedule to the Bill. The offences in it are those considered to be serious in nature, for which offenders must or may receive serious or restrictive sentencing and release measures. It includes common law offences such as murder, assault and robbery, as well as statutory offences such as offences against the person, firearms offences and robbery. However, when assessing the risk of a prisoner causing serious harm, the decision maker is not bound by the offences listed in the schedule. Indeed, proposed new section 28ZA(5)(d) will enable the decision maker to take into account

“the risk that the prisoner would commit a further offence” that could, in their view, cause serious harm.

I turn now to minimal risk. Subsection (5) is at the heart of the release test, and it is the starting point for assessing risk. Hopefully the criteria set out here are straightforward; none the less, it may aid the deliberations of the Committee on what is required of the decision maker if I briefly run through them in turn. Subsections (5)(a) and (b) relate to the index offence for which the prisoner was sentenced and any other offence of which they have been convicted. Of course, these are crucial factors in determining the level of risk the prisoner might pose if released. The decision maker is therefore directed to consider the nature of the offence—what crime was committed—and the seriousness of the manner in which the crime was committed. For example, were there aggravating factors and what were the judge’s sentencing remarks?

In the accounting of whether there is a risk, is there anything that would ensure that, for example, evidence is taken by the Parole Board from the family courts? There is a problem in that the family courts do not speak to the criminal courts—it happens all the time. A finding that somebody had committed rape could be found in the family court but not in the criminal court. I worry; for example, with children’s services—if there were children involved, would that be taken into account by the Parole Board? I do not think it is in any way a fair to say that an assessment of the risks posed—of any minimal threat to anyone, when we are considering domestic and sexual violence—could only come from the police, because so few women come forward.

I am grateful to the hon. Lady for the point she makes, and I understand that she is getting at how widely one draws out what is relevant and useful information pertinent to decision making. I appreciate the point she makes about some factors not currently being explicitly taken into consideration under the provision. On that specific point of law, I hope she will allow me either to write to her or revert to her before the Committee concludes.

With subsection (5)(c), the requirement is then to consider the prisoner’s behaviour, even in prison or on licence, while serving the sentence. The decision maker must review the available evidence—for example, from probation officers—as to whether the prisoner has complied with all the demands made of them. There is a link to subsection (5)(f), which considers the impact of any rehabilitative interventions, such as therapeutic treatment or engagement in education, and their effectiveness in reducing the prisoner’s risk to the public.

I have already mentioned subsection (5)(d). Subsection (5)(e) covers the assessment the decision maker must make in respect of what licence conditions might be imposed if the prisoner is suitable for release, and what the likelihood of the prisoner complying with them is. Subsection (5)(g) requires the decision maker to take account of any submission made on behalf of the prisoner as to their suitability for release. An account must also be taken of any submission from the Secretary of State, which may include their view on the risks posed by the prisoner.

As we have discussed at length, it is vital that we put victims at the heart of the criminal justice system. For that crucial reason, subsection (6) says that when assessing the level of risk that the prisoner may pose to the public in general

“the decision-maker must in particular have regard to the protection of any victim of the prisoner.”

In that context, my interpretation of the requirement on the board to take all relevant evidence into account—as I said, I will write to the hon. Member for Birmingham, Yardley if I have misinterpreted this—is that if relevant material is held by another authority, it can still be obtained on behalf of the Secretary of State and considered. I hope that she will allow me to confirm that to her in writing.

The criteria set out in subsections (5) and (6) are comprehensive and undoubtedly assist the decision maker in assessing risk; however, it is not an exhaustive list of criteria. That is confirmed by subsection (9), which clarifies that the decision maker is not limited in the matters to be taken into account when assessing a prisoner’s risk. The Government consider it necessary to be transparent and clear when it comes to making very important public protection decisions that have significant consequences for the public, victims and prisoners. The high threshold for release and the criteria by which risk is assessed must therefore be there for everyone to see and understand. We are satisfied that the Clause codifies the release test used by the Parole Board, and the board advises that it could be a welcome clarification for it of the factors that its members already take into consideration.

I thank the Minister for setting out the clauses comprehensively. They are broadly welcome, in that they introduce a new public threshold in legislation. Although putting the release test in legislation and introducing the new threshold may help to give greater transparency and consistency, there remains a question mark about whether it is necessary. The Chair of the Justice Committee observed on Second Reading that

“there is an element in this part of the Bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need…There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?”—[Official Report, 15 May 2023; Vol. 732, c. 602-603.]

Although it was helpful to hear from the Minister today some of the thinking behind the clauses, I notes that the Justice Committee wrote to the Lord Chancellor stating that the changes could have a positive effect on consistency and transparency of Parole Board decision making, but also outlined that the changes are not strictly necessary. Again, there is a question mark about whether parliamentary time could be better spent focusing on victims rather than some of these changes.

Let me return to the concerns I raised previously about the non-exhaustive list of factors for the Parole Board to take into account. There is a risk that the Parole Board may end up giving more weight to those things that are on the list rather than to other factors that may be relevant. I have already spoken about alleged but unproven allegations. My hon. Friend the Member for Birmingham, Yardley gave the example of findings that might be made in the family court, particularly in relation to rape and domestic abuse. My worry is that an unintended consequence of specifying a list of things that have to be taken into account might be a failure to take into account issues that are also extremely relevant to risk. Although we broadly we support the clauses, we think those points need a little further reflection.

I am always conscious that the hon. Lady is an extremely able lawyer, so I listen carefully to everything she says and will reflect carefully on her points. I am also conscious that both Lewisham East and Lewisham West are represented on this Committee; Lewisham is well represented. With that, I commend the clauses to the Committee.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clause 33 ordered to stand part of the Bill.

Schedule agreed to.