Coroners and Justice Bill

I and all those who have appended their names to this proposition wish to oppose not only this clause but all the clauses in Part 7. At Second Reading, which was some two months ago, I ventured to flag up my tentative view that I doubted the value and usefulness of the Government’s proposal to enable the courts to order an offender to pay amounts in respect of benefits received from the exploitation of material relating to his offence; for example, royalties obtained from a book or from a television interview about his crime. Support for my view at Second Reading was voiced by the noble Lord, Lord Lester of Herne Hill, and the noble Baroness, Lady Stern, both of whom are in their places today and expressed strong doubts about the proposed "exploitation proceeds orders", as they are called in the Bill. I am delighted that they have joined in my proposition that Part 7 does not stand part of the Bill. The noble Lord, Lord Henley, speaking from Her Majesty's Opposition Front Bench, was kind enough to say that I had probably got it right when I said that I had considerable doubts as to whether Part 7 was needed at all, because adequate remedies are already in place to deal with the public outrage that might arise from convicted criminals profiting from the proceeds of the publication of their memoirs. I cited the memoirs of Ian Brady, Mary Bell and Dennis Nilsen. Subsequently, I received a letter from Dennis Nilsen, who has been in prison for 26 years so far out of his life tariff for multiple murders committed in the early 1980s. He told me that he had never received any payment directly or indirectly for any memoirs. He is, I believe, correct, and I repeat today the apology that I made to Dennis Nilsen by letter on 20 June. I accept that he has not profited from any memoirs; that does not mean that he has not tried to do so. However, there are already in place prison rules to prevent the publication of memoirs while the author is in prison. These rules were applied to Nilsen and his solicitor when a considerable manuscript of, I think, some 70,000 words was produced. The legality of the prison rules in terms of the European Convention on Human Rights was challenged by Nilsen and his solicitor, and the Court of Appeal upheld in 2003 that the rules were not contrary to European Convention on Human Rights. In addition to the prison rules, which can stop publication of memoirs in the way that I have described, the Serious Organised Crime Agency may seek a confiscation order from the court when money has been obtained in connection with an offence. Part 7 seeks to introduce a civil recovery scheme whereby the courts may order an offender to pay over amounts in respect of benefits derived from the exploitation of any accounts of their crime. I doubt that any of these provisions in Part 7 are worth while, and I can certainly see difficulties in their application. The Government say that changes are desirable to prevent further hurt and distress to victims and their families. Concern for victims is of course a theme running throughout this Bill, but the Government admit that nothing is to be recoverable by the victims—any monies recovered would go to the Consolidated Fund—and that the provisions will be usable in only a very few cases. In a letter sent to me on 14 June and, I think, copied to other noble Lords and placed in the Library of the House, the Minister has explained that an exploitation proceeds order can be made only by way of application to the High Court and that the court will have wide discretion—that is, of course, very helpful practical protection for the respondent; namely, the author of the memoirs. However, the Government also emphasise the expected rarity of the orders. I would further argue that the publication of a criminal’s memoirs may in some cases have beneficial outcomes in terms of the rehabilitation of the offender, just as learning new technical or language skills or discovering one’s artistic talent may assist in the rehabilitation of a prisoner. Let us recollect prison diaries by sometime parliamentarians. I do not know what your Lordships’ taste in books runs to, but it may run to the quasi-confessional thoughts of former Member of Parliament Jonathan Aitken. It may run to the detailed experiences of prison life of our fellow Member, the noble Lord, Lord Archer of Weston-super-Mare. I doubt that the possibility of public outrage justifies further restrictions on the freedom of expression of an offender, whoever he or she may be. I have already made the points that there are restrictions under the Prison Rules, and that the confiscation provisions of the Proceeds of Crime Act 2002 can be used to recover any excessive royalties that one may come across in an occasional case where it is desirable for confiscation to take place. The Minister tells me that the application of the confiscation provisions of the 2002 Act is "far from certain". While confiscation orders would normally be obtained at the point of conviction, a publication about a crime may not be written until many years after the event. The Minister does not say that confiscation orders under the 2002 Act cannot be obtained later than the date of conviction, though no doubt concern about outrage to the victims may reduce over time and reduce justification for any court to make such an order. I accept that the application of the confiscation provisions in the 2002 Act is uncertain but so would be the application of the present proposals in Part 7 of the Bill. Anybody who glances at Clause 145, which is filled with all kinds of limitations and restrictions, will see how unlikely and rare it will be for the court to make orders under the current Bill. Your Lordships will know that the Joint Committee on Human Rights is concerned that an exploitation of proceeds order is in part dependent on the degree to which victims, victims’ families and the general public are offended. Your Lordships will know from Clause 145(3)(f) that that is so. The court would have to go into the extent to which it thinks that the memoirs would offend the victims, the victims’ families or the public in general. As the noble Baroness, Lady Stern, said at Second Reading—as, I think, did the Joint Committee on Human Rights—that leaves a great deal of uncertainty. I think all the clauses in Part 7 should be removed. They do not do justice to the Government’s desire to assist victims or deal with the public outrage that there may be. Provisions exist—especially the prison rules—that stopped the publication of the Nilsen memoirs. There are existing provisions which are sufficient and adequate, without having another 11 clauses added to the Bill, which your Lordships may think is already long enough.