New Clause No. 3.—(SPECIAL CONDITIONS OF BAIL.) (Hansard, 26 April 1967)

§ Mr. Taverne
I beg to move, That the Clause be read a Second time.

§ Mr. Speaker
I understand that we are to discuss with this new Clause Amendment No. 8, to Clause 3, in page 3, line 35, to leave out 'any of'.

§ Mr. Taverne
This new Clause would replace subsection (6) of Clause 12 which was added to the Bill after an Amendment moved by hon. Members opposite and inspired by one of the working parties of "Justice". Our debates in Committee convinced us that the adding of conditions or the power to impose conditions to bail would be valuable as it might reduce the number of people who were refused bail. It is hoped that the courts will keep in mind that the purpose of the provision is to save some people from being kept in prison and not to burden those who will in any event be given bail by the adding of conditions. There should be no question of imposing special conditions as a matter of course.
The new facility should be used in cases in which, without conditions, a person would have to go to prison, but in which the imposing of conditions might be a sufficient safeguard to make custody unnecessary. It is also important to bear in mind that these conditions will, to some extent, have to be policed. It will, of course, be difficult for the police to supervise all these conditions in every case and the choice of conditions will, I hope, be made by the court with the consideration that there will be an extra burden on the police.
The Clause does not specify any conditions. Nor did it seem to add substantially to its effect to give a number of examples, as the original subsection did. It would be difficult to specify in advance every kind of condition which might be thought useful and one would want to avoid argument as to whether certain conditions came within the Clause or not. The conditions ought to be forms of restriction which would make it more difficult for the accused to engage in undesirable conduct like interfering with prosecution witnesses and ensure that he turned up at the trial at the end of the remand period.
1622 For that reason, subsection (1) provides that the court may impose any condition which appears likely to conduce to the defendant's subsequent appearance and to the prevention of crime and interference with the ends of justice. These are, shortly, the common law criteria on which the courts should found their bail determinations. The sanction against breach of conditions consists in the police powers which are the subject of another new Clause which I shall move shortly.

§ Mr. Percy Grieve (Solihull)
I thank the Government for having implemented the undertaking which they gave in Committee, and welcome the new Clause. As the hon. and learned Gentleman said, the Amendments in Committee were inspired by the sub-committee of "Justice" which carefully considered this matter and reported in a sense which was extremely useful to the Committee and which will, I believe, result in the courts' finding it much more easy to grant bail.

§ Mr. Reginald Paget (Northampton)
Although I am in entire agreement with the purpose of the Clause, I am a little anxious about its form. The Under-Secretary said that this provision is not to be used as common form, but only in cases where the court could not otherwise grant bail. But there is nothing in the Clause to say this. The courts do not know what has been said here or the undertakings which have been given and, indeed, could not consider them. Why cannot something be written into the Clause to the effect that conditions on which bail is granted should be imposed in cases in which bail could not otherwise be granted? Then the courts would know the Government's intentions.

§ Mr. Hogg
I have great sympathy with the point of the hon. and learned Member for Northampton (Mr. Paget). It would be churlish if I did not thank the Under-Secretary for the new Clause, which he promised in Committee in reply to suggestions from both sides; he has discharged his promise honourably and, I think, improved the Bill by doing so.
At the same time—I hope that the Home Secretary may consider this even while the Bill is passing through another place—as I said in Committee, the trouble with Clause 12 and this Clause, which 1623 are really parts of the same complex now, is that they are much too complicated. In my opinion, which is widely shared in the House, the only real reasons for refusing bail which commonly arise are the danger of absconding before the trial, the chance of interfering with witnesses before the trial and the prevention of the commission of another offence by the same offender. As the hon. and learned Gentleman said in criticism of the new Clause, this will not be found in it or in Clause 12 or anywhere else, except in the Magna Carta, which nobody reads nowadays.
If the Under-Secretary would reconsider this complex and put in something positive, either in Clause 12 or some other appropriate place in these provisions—which are purely negative, because they allow for reasons why bail should not be refused—it would be very much simpler and make for better draftsmanship and a much better Clause.

§ Mr. A. J. Irvine (Liverpool, Edge Hill)
The Clause meets the anxieties which many of us expressed in Committee, when it was said that, under the language of the Bill, the two primary reasons for refusing bail—the risks of the accused jumping bail and of his interfering with witnesses—were not spelled out as grounds. Objection was taken to that with some force. The view was expressed, with good reason, that the Bill's language diverted magistrates' attention from what should be the primary factors in reaching their conclusion.
However, that objection is overcome—the right hon. and learned Member for St. Marylebone (Mr. Hogg) conceded this —because these matters are now expressly referred to in the Clause, so that they take the form of conditions which may be attached to the grant of bail. The main danger which existed is thus overcome.
Considering the merit of dealing with these matters as conditions of bail, the House should consider the Clause again, I think, between this new Clause and the other which is shortly to follow. It is welcome that the introduction of this concept in the form of conditions for the grant of bail should be closely related —as they are in what is proposed—to measures which can be taken to ensure 1624 that the conditions are not, with impunity, disregarded.

§ Mr. Taverne
I am not sure that I fully understood the difficulty that is felt by my hon. and learned Friend the Member for Northampton (Mr. Paget), who wondered whether conditions should be imposed in cases where bail could not be given. The difficulty that might arise is in connection with the fact that conditions should be imposed in cases where bail is bound to be given under Clause 12. I understand that to be the point about which my hon. and learned Friend is anxious. I assure him that the Government have carefully considered this matter. Having considered the criticism that has been made of the earlier parts of Clause 12, it was felt that it would be too restrictive if the conditions were confined to those cases which did not arise under the rest of the Clause.
The right hon. and learned Member for St. Marylebone (Mr. Hogg) asked for a positive statement to be made somewhere in the Clause about the existing common law on bail. I assure the right hon. and learned Gentleman that the common law remains and that nothing in the Clause alters it—except in respect of certain conditions stated in the Clause about bail having to be given and apart from the new subsection which has been added.
Had we at some stage inserted the common law in a statutory fashion in the provision, the effect might have been too restrictive, particularly if certain of the reasons for refusing bail had been linked to the existing common law. I suggest that, with the common law surviving as it does, the Clause will have the effect of bail no longer being refused to be given in many cases where bail can safely be given.